Ritson v Ryan
[2022] FCA 193
•7 March 2022
FEDERAL COURT OF AUSTRALIA
Ritson v Ryan [2022] FCA 193
File number: QUD 212 of 2021 Judgment of: RANGIAH J Date of judgment: 7 March 2022 Catchwords: HUMAN RIGHTS – application to enforce determination by Information Commissioner that respondent breached s 85ZU of the Crimes Act and that respondent pay compensation – declaration that respondent contravened s 85ZU of the Crimes Act and that respondent pay the applicant $2,500.
BANKRUPTCY AND INSOLVENCY – Bankruptcy Act 1966 (Cth) – where applicant commenced proceedings prior to becoming bankrupt – whether applicant entitled to maintain proceeding in own name.
Legislation: Bankruptcy Act 1966 (Cth) ss 60 and 116
Crimes Act 1914 (Cth) ss 85ZL, 85ZT, 85ZU, 85ZZC, 85ZZD(1)(b)(v), 85ZZE and 85ZZF
Privacy and Personal Information Protection Act 1998 (NSW) s 62
Cases cited: Cox v Journeaux (No 2) (1935) 52 CLR 713
Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92
Division: General Division Registry: Queensland National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 31 Date of hearing: 7 March 2022 Counsel for the Applicant: The Applicant appeared in person via MS Teams Counsel for the Respondent: The Respondent did not appear ORDERS
QUD 212 of 2021 BETWEEN: BRENDAN RITSON
Applicant
AND: JONATHAN RYAN
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
7 MARCH 2022
THE COURT DECLARES THAT:
1.The respondent, by disclosing to the Federal Circuit Court of Australia that the applicant had been convicted of a State offence in circumstances where that conviction had been quashed (without the applicant's consent), contravened s 85ZU of the Crimes Act 1914 (Cth).
IT IS ORDERED THAT:
2.The respondent pay the complainant $2,500 for loss and damage suffered by the applicant as a result of the respondent's contravention of s 85ZU of the Crimes Act 1914 (Cth).
3.The respondent pay the applicant $275 for outlays incurred in respect of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
The applicant has applied, pursuant to s 85ZZF(1) of the Crimes Act 1914 (Cth), for orders enforcing a determination of the Acting Australian Information Commissioner and Privacy Commissioner (the Information Commissioner). The respondent failed to appear at the hearing of the application.
It is necessary to say something about the procedural history of the proceeding. The proceeding was originally listed for hearing on 29 November 2021. The respondent failed to comply with orders that he file a notice of address for service by 24 September 2021 and that he file and serve written submissions by 15 November 2021. The respondent applied for an adjournment and, over the applicant’s objection, I granted the adjournment and relisted the proceeding for hearing on 7 March 2022.
On 29 November 2021, I made further procedural orders, including that the respondent file and serve written submissions by 7 February 2022. When the respondent failed to comply with that order, the applicant filed an application for default judgment, and that application was listed to be heard on the same day as the final hearing, 7 March 2022.
On 2 March 2022, the registry wrote to the parties informing them that the hearing would be conducted remotely by Microsoft Teams and providing a link to join the hearing.
On the morning of the hearing, the registry received an email from the respondent saying:
Unfortunately I have a medical condition and will be unable to attend this hearing today
I will forward a medical certificate by email
I apologise to the Court, unfortunately it is something that is outside my control
I respectfully request that the hearing be adjourned
(As in the original.)
At my direction, the registry sent an email to the respondent pointing out that no medical certificate had been received and informing the respondent that I had declined to adjourn the hearing. When the hearing commenced, the respondent failed to join the hearing via the Microsoft Teams link and otherwise failed to appear.
After the hearing had commenced, the respondent sent another email to the registry, stating:
If you could please pass on to his Honour, that I will email a medical certificate to you by the close of business hours today
I have already sought medical advice, and will be attending a medical clinic in the Melbourne CBD very shortly
It was simply not possible to obtain a medical certificate before Court commenced this morning
I do not attend medical appointments “online” it is something I do “face-to-face”
Again I respectfully request that this matter be adjourned
I cannot this action (which I am certain is baseless) if I do not appear
(As in the original.)
I was not satisfied that the respondent had provided any reasonable grounds warranting an adjournment. I was satisfied that the respondent had the opportunity to appear at the hearing but had failed to take up that opportunity. I considered it appropriate to proceed with the hearing and give judgment in the absence of the respondent.
On 25 July 2017, the applicant made a complaint to the Information Commissioner that the respondent had contravened s 85ZU of the Crimes Act. That section provides:
85ZU Effect of quashed convictions
Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZT, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:
(a)it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and
(b)anyone else who knows, or could reasonably be expected to know, that section 85ZT applies to the person in relation to the offence shall not:
(i)without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first mentioned person not to disclose it to that other person or that authority; or
(ii)in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
Section 85ZT provides:
85ZT Quashed convictions
…
(2)Subject to Division 6, but despite any other Commonwealth law or any Territory law, where a person’s conviction of a State offence or a foreign offence has been quashed, the person is not required:
(a)in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or
(b)in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.
Pursuant to s 85ZL(g) of the Crimes Act, a “Commonwealth authority” includes “a federal court”. Under s 3, “federal court” means the High Court or a court created by the Parliament, other than a court of a Territory. The Federal Circuit Court of Australia was, at the relevant times, a Commonwealth authority.
The applicant was a member of the New South Wales Police Force between 21 December 2001 and 10 March 2011. On 13 March 2007, the applicant was charged with an offence under s 62(1) of the Privacy and Personal Information Protection Act 1998 (NSW) of unlawfully disclosing personal information obtained in the exercise of the applicant’s official functions as a public sector official. The applicant pleaded not guilty in the Local Court of New South Wales, but on 12 February 2009 was found guilty of the offence. The applicant appealed and on 30 July 2010 the applicant’s conviction was quashed by the District Court of New South Wales.
The applicant and the respondent were engaged in civil litigation against each other before the Federal Circuit Court. On 27 July 2016, the respondent filed an affidavit in those proceedings containing the following statement:
It later transpired that [the applicant] joined the NSWPF in 2001 but was suspended in around 2007, following a criminal conviction and several misconduct reports…
Under s 85ZZC(1) of the Crimes Act, the Information Commissioner is required to consider a complaint, and investigate the act complained of, if the act may be a breach of Division 2, within which s 85ZU is found.
Section 85ZZD(1) provides that after investigating a complaint, the Information Commissioner may, relevantly, find the complaint substantiated and make a determination. Under s 85ZZD(1)(b)(v) the Information Commissioner may make:
A declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered because of the act… about which the complaint was made.
Section 85ZZE provides, relevantly, that when a determination includes a declaration of the kind referred to in s 85ZZD(1)(b)(v), the declaration has effect as a declaration that the complainant is entitled to receive the specified amount from the respondent.
Section 85ZZF(1) provides, relevantly, that the complainant may apply to the Federal Court of Australia for an order to enforce a determination under s 85ZZD(1)(b). Section 85ZZF(2) provides:
If the Federal Court of Australia is satisfied that the authority or person about whom the complaint was made has done anything that is a breach of Division 2 or 3 the court may make any orders it thinks fit (including a declaration of right).
On 18 June 2021, the Information Commissioner made the following determinations and declarations:
(1)the respondent has breached Division 2 of Part VIIC of the Crimes Act in relation to the complainant by disclosing their quashed conviction without their consent;
(2)the respondent has engaged in conduct that is unlawful under the Crimes Act and should not repeat or continue that conduct; and
(3)the respondent must pay the complainant $2,500 for loss or damage suffered because of the act or practice about which the complaint was made.
The Information Commissioner provided reasons. She accepted that the complainant had a quashed conviction in respect of a State offence, namely, the conviction of 7 April 2009 that was quashed on 30 July 2010. Accordingly, the complainant had a right under s 85ZT(2)(b) of the Crimes Act to not disclose the fact of the charge or the fact of the conviction. The Information Commissioner found that the respondent had disclosed to the Federal Circuit Court the fact that the complainant was charged with, and convicted of, the offence the subject of the quashed conviction. The Information Commissioner found that the respondent could reasonably be expected to know that s 85ZT applied to the complainant at the time of the disclosure. The Information Commissioner considered it appropriate to make declarations, including a declaration that the respondent pay the complainant $2,500 for loss and damage.
It is necessary to consider a preliminary issue. The applicant commenced the present proceeding on 28 June 2021. On 12 August 2021, the applicant was made bankrupt. The applicant’s trustees in bankruptcy have advised the court that:
If the proceedings are not subject to the exemption in s 60(4) of the Bankruptcy Act 1966 (Cth), then they elect to discontinue them, as the proceedings are immaterial to the creditors of the bankrupt estate.
Section 60 of the Bankruptcy Act 1996 (Cth) provides relevantly:
60 Stay of legal proceedings
…
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a)any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or
(b)the death of his or her spouse or de facto partner or of a member of his or her family.
…
(5) In this section, action means any civil proceeding, whether at law or in equity.
It may also be noted that s 116(2)(g)(i) of the Bankruptcy Act operates to exclude from the property divisible among the creditors any right of the bankrupt to recover damages or compensation, “for personal injury or wrong done to the bankrupt”.
It may be seen that the proceeding is stayed by force of s 60(2) of the Bankruptcy Act unless it is “in respect of…any personal injury or wrong done to the bankrupt”.
In Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721 Dixon J observed in respect of the then extant equivalent of s 60(2):
The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.
(See also Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92 at [19]–[22]).
In the present proceeding, the applicant applies for orders under s 85ZZF of the Crimes Act to enforce a determination under s 85ZZD(1)(b)(v) that the respondent pay the complainant $2,500 for loss and damage. The applicant also seeks a declaration that the respondent has engaged in conduct that is unlawful under the Crimes Act, and an order that the respondent must not repeat or continue conduct that is unlawful under the Crimes Act.
The basis of the Information Commissioner’s determination and declarations was that the respondent contravened s 85ZU of the Crimes Act. The effect of s 85ZU is to make it unlawful for a person who could reasonably be expected to know that s 85ZT applies to disclose to a Commonwealth authority the fact that another person was convicted of an offence when that conviction has been quashed, without the consent of the person. An evident purpose of the provision is to protect a person’s reputation from harm through disclosure of the fact of a charge and conviction in circumstances where the conviction has been quashed. A contravention of s 85ZU is appropriately described as being referable to the character of the person wronged.
In my opinion, the proceeding brought in this Court under s 85ZZF for enforcement of the declarations made by the Information Commissioner is in respect of a wrong done to the bankrupt within s 60(4) of the Bankruptcy Act. Accordingly, the applicant is entitled to continue the proceeding in his own name.
The respondent has not sought to challenge the reasons of the Information Commissioner. For the reasons given by the Information Commissioner, I am satisfied that the respondent contravened s 85ZU of the Crimes Act.
I am satisfied that the amount of compensation determined by the Information Commissioner is appropriate.
Although the applicant seeks an injunction restraining the respondent from repeating or continuing the unlawful conduct, I am not satisfied that there is any threat of any such repetition or continuation of the conduct. I am not satisfied that it is appropriate to grant an injunction.
I will make a declaration substantially in the form sought by the applicant.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 21 March 2022
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