Ritson v Ryan

Case [2018] QCATA 148

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Ritson v Ryan [2018] QCATA 148

PARTIES:

BRENDAN RITSON
(appellant)
v

JONATHAN RYAN

(respondent)

APPLICATION NO/S:

APL045/18

ORIGINATING APPLICATION NO/S:

MCDO2024/16 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

2 October 2018

HEARING DATE:

31 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to appeal against the decision made in MCDO2024/16 is granted.  The appeal is allowed.

2.   The decision made on 31 January 2018 is set aside.

3.   Application MCDO2024/16 is remitted to the tribunal for reconsideration and the following directions are given for its resolution.

4.   If Brendan Ritson wishes to amend the claim he must apply to the tribunal to do so on Form 40 by 31 October 2018 having first provided a draft of the proposed amended claim to Jonathan Ryan.  Any application to the tribunal must be accompanied by the draft and any comments from Jonathan Ryan.

5.   Brendan Ritson and Jonathan Ryan shall by
21 November 2018 send to each other and file in the tribunal evidence and submissions on the following issues:-

(a) Whether, at the time the relevant contracts were made with the assignors, Jonathan Ryan was a ‘trader’ as defined in Schedule 3 of the Queensland Civil and Administrative TribunalAct 2009 (Qld), that is to say a person who in trade or commerce carried on a business of supplying goods or providing services (or regularly held himself out as doing so) unless he was acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.

(b)  Whether (and how) any terms and conditions were incorporated into the contracts made by the assignors.  This evidence must include the whole of the contract said to be so incorporated.

(c)   If the tribunal has given leave to amend the claim, any further evidence and submissions required by that amendment.

(d)  Any further evidence and submissions on which either side wishes to rely.

6.   Any legal authorities relied on by either side must be photocopied in full and provided to the other side and to the tribunal (with the relevant passages relied on marked and highlighted) at least 7 days before the hearing date.

7.   Application MCDO2024/16 should be listed for hearing in the MCD list after 28 November 2018 with a time estimate of one day.  It should not be listed before an adjudicator who has previously made a decision which has been reversed on appeal.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where after an oral hearing the Adjudicator reserved the decision for further evidence and submissions – where before the final decision was made, a party applied for the Adjudicator to disqualify himself on the grounds of apprehended bias by conduct – where that application was not dealt with formally – whether the Adjudicator was disqualified – whether the appellant waived his rights in respect of reasonably…

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Details
AGLC
Ritson v Ryan [2018] QCATA 148
Case
[2018] QCATA 148
Decision Date

CaseChat Overview and Summary

In the case of Ritson v Ryan, the dispute between the parties centred on the adjudicator's decision regarding the incorporation of terms and conditions into contracts made by the assignors. The Queensland Civil and Administrative Tribunal was tasked with resolving the matter. The legal issues primarily revolved around the adjudicator's impartiality, the potential for reasonably apprehended bias, and the procedural fairness afforded to the parties.

The court examined whether the adjudicator's remarks could reasonably lead a lay observer to apprehend bias. Although Mr Ritson did not argue that there was actual bias, the court considered the principle that the apprehension of bias could undermine the integrity of the judicial system. The court found that the Ebner test for reasonably apprehended bias was satisfied. It was noted that the failure of the appellant to object to the remarks during the trial could be interpreted as a waiver of the right to later object to the adjudicator's impartiality. However, the court held that the appellant's right to object was not waived because the remarks were effectively revived in the adjudicator's reserved judgment.

The court granted leave to appeal and allowed the appeal on the basis that the adjudicator's decision was flawed due to the reasonably apprehended bias. The decision made on 31 January 2018 was set aside, and the application was remitted to the tribunal for reconsideration with specific directions. The tribunal was directed to address certain issues, including the definition of 'trader', incorporation of terms and conditions, and any further evidence or submissions required. The tribunal was also instructed to list the application for hearing after 28 November 2018, ensuring that the hearing was conducted by an adjudicator who had not previously made a decision that was reversed on appeal.

Orders

Orders of the court

1. Leave to appeal against the decision made in MCDO2024/16 is granted. The appeal is allowed.

2. The decision made on 31 January 2018 is set aside.

3. Application MCDO2024/16 is remitted to the tribunal for reconsideration and the following directions are given for its resolution.

4. If Brendan Ritson wishes to amend the claim he must apply to the tribunal to do so on Form 40 by 31 October 2018 having first provided a draft of the proposed amended claim to Jonathan Ryan. Any application to the tribunal must be accompanied by the draft and any comments from Jonathan Ryan.

5. Brendan Ritson and Jonathan Ryan shall by

21 November 2018 send to each other and file in the tribunal evidence and submissions on the following issues:-

(a) Whether, at the time the relevant contracts were made with the assignors, Jonathan Ryan was a ‘trader’ as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), that is to say a person who in trade or commerce carried on a business of supplying goods or providing services (or regularly held himself out as doing so) unless he was acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.

(b) Whether (and how) any terms and conditions were incorporated into the contracts made by the assignors. This evidence must include the whole of the contract said to be so incorporated.

(c) If the tribunal has given leave to amend the claim, any further evidence and submissions required by that amendment.

(d) Any further evidence and submissions on which either side wishes to rely.

6. Any legal authorities relied on by either side must be photocopied in full and provided to the other side and to the tribunal (with the relevant passages relied on marked and highlighted) at least 7 days before the hearing date.

7. Application MCDO2024/16 should be listed for hearing in the MCD list after 28 November 2018 with a time estimate of one day. It should not be listed before an adjudicator who has previously made a decision which has been reversed on appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There may be a perfectly innocent explanation for the Adjudicator’s remarks, and it is unnecessary to consider whether there was actual bias. Mr Ritson does not contend that there was actual bias. As explained in these further passages from Ebner:-7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.Conclusion on the appeal I conclude that the Ebner test of reasonably apprehended bias is satisfied in this case. The question then arises whether the appeal should succeed on that basis. It is possible for the party affected by reasonably apprehended bias to waive a right to any remedy arising from it. As was said by Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568:- 7. If the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant, having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour's judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias. The statements which the learned trial judge had made about his preconceived views of Dr Lawson were, however, effectively revived by what his Honour said in his reserved judgment. The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. The way it was put by Toohey J was:-16. There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension … 17. In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased.

Ratio Decidendi

Legal Principle Established

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