Ritson v Ryan
[2020] QDC 267
•22 October 2020
DISTRICT COURT OF QUEENSLAND
CITATION:
Ritson v Ryan [2020] QDC 267
PARTIES:
BRENDAN RITSON
(plaintiff)v
JONATHAN LAURENCE RYAN
(defendant)
FILE NO/S:
3442/2019
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
22 October 2020
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2020 and 2 October 2020, with further material delivered on 9, 16 and 19 October 2020.
JUDGE:
Williamson QC DCJ
ORDER:
Orders made in accordance with paragraph [40] of these reasons for judgment.
CATCHWORDS:
PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNIFORM CIVIL PROCEDURE RULES – where plaintiff filed Claim and Statement of Claim against defendant in District Court of Queensland in September 2019 – where Claim and Statement of Claim not served before the 1 year anniversary – where plaintiff applied to the District Court for an order permitting substituted service of Claim and Statement of Claim – where application for substituted service opposed by defendant on ground that the Claim and Statement of Claim had not been renewed – where plaintiff filed application to strike out scandalous material on 1 October 2020 - whether Claim should be renewed under rule 24(2) of the Uniform Civil Procedure Rules 1999 – whether application to strike out scandalous material should be granted.
COUNSEL:
Mr B Ritson, self-represented
Mr J Ryan, self-representedSOLICITORS:
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There is an extensive history of litigation between Mr Ritson and Mr Ryan. This is another chapter in that saga.
On 23 September 2019, Mr Ritson filed a Claim and Statement of Claim in the District Court of Queensland seeking damages, and interest, for malicious prosecution. The cause of action is alleged to arise out of proceedings commenced by Mr Ryan in the Melbourne Magistrate’s Court. The purpose of the proceeding was to seek a personal safety intervention order against Mr Ritson.
Rule 24(1) of the Uniform Civil Procedure Rules 1999 (UCPR) provides that a Claim remains in force for 1 year, starting the day it is filed. Mr Ritson’s Claim and Statement of Claim were not served before this anniversary. He did however make an application for substituted service on 21 September 2020. An affidavit was filed in support. In short compass, the purpose of the affidavit is to prove that personal service of the proceeding on Mr Ryan was, and is, impractical because he lives in Victoria, which has been subject to well publicised restrictions and a declared state of emergency. The emergency is the notorious Covid-19 pandemic.
Mr Ritson’s application for substituted service was listed for hearing on the papers on Monday, 28 September 2020. The application was not heard in this way. Rather, as a consequence of the substance of an email sent by Mr Ryan to my Associate (via the Registry) late on 25 September 2020, I formally listed the application for hearing before me. That hearing took place on 28 September 2020. Mr Ritson and Mr Ryan were self-represented, and appeared by telephone.
After hearing limited oral submissions on 28 September 2020, it became clear that Mr Ryan opposed an order for substituted service. He did so on the limited basis that the Claim had expired, and had not been renewed as required under the UCPR. The point taken by Mr Ryan in this regard was correct. The Claim expired prior to 28 September 2020. The Claim, and Statement of Claim, had not been served on him prior to the anniversary date.
The registrar has power to renew Mr Ritson’s Claim. In this regard, r 24(2) of the UCPR states:
“If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.”
An oral application was made by Mr Ritson on 28 September 2020 for an order under r 24(2) renewing the Claim. Upon making the oral application, Mr Ritson invited the court to renew the Claim, and make the order for substituted service. That course was opposed by Mr Ryan. He insisted that Mr Ritson should make an application to the registrar for renewal, as contemplated by r 24(2) of the UCPR, before the application for substituted service could be decided.
Given three things, namely: (1) the litigation history between the parties; (2) that the court was seized with the plaintiff’s application for substituted service; and (3) that the outcome of the substituted service application was necessarily bound up with an application to renew the Claim, I exercised my discretion under r 453 of the UCPR to order that the application for renewal cannot be heard by the registrar. This order had the consequence that I was seized with both applications. Upon making this order, Mr Ryan asked for time to file material in response. I acceded to this request, and listed Mr Ritson’s applications for hearing before me on 2 October 2020.
The applications came on for hearing on 2 October 2020. Sensibly, Mr Ryan confirmed from the outset that he only opposed the application to renew the Claim. If the Claim was renewed, he accepted that substituted service was appropriate in the circumstances. He made submissions about the draft order proposed by Mr Ritson in this regard. The orders set out in paragraph [40] reflect that I have accepted Mr Ryan’s submission about the terms of the order for substituted service. Those submissions were not opposed by Mr Ritson.
Should the claim be renewed?
Rule 24(2) of the UCPR provides two broadly stated bases for the renewal of a Claim, namely if the Court is satisfied that: (1) reasonable efforts have been made to serve the defendant; or alternatively; (2) there is another good reason to renew the Claim. Mr Ritson relies upon both bases to renew the Claim.
I am comfortably satisfied there is ‘another good reason’ to renew the Claim under r 24(2) of the UCPR for a period of 6 months. This is so given the combination of the following reasons.
First, the need for the renewal arises after the first anniversary of the Claim.
Second, it is clear that Mr Ritson only became aware of r 24(1) of the UCPR during the hearing of the application for substituted service on 28 September 2020. Once notified, he took immediate steps to address the point by making an instantor oral application for renewal. That application was made in a timely way. It was made three business days after the first anniversary of the Claim.
Third, Mr Ryan conceded he was aware of the Claim prior to its expiration. Mr Ryan was unable to identify precisely when he first became aware of it. That said, it is tolerably clear that Mr Ryan was keeping an eye on the progress of the proceeding for not an insignificant period leading up to 25 September 2020. This explains why he was aware the matter was listed for hearing on 28 September 2020.
Fourth, an affidavit filed on behalf of Mr Ritson provides an adequate explanation as to why the proceedings were not served in accordance with the UCPR prior to the first anniversary of the Claim. In simple terms, Mr Ritson’s ability to serve the Claim himself on Mr Ryan has been materially impeded.
Mr Ritson deposed to the parties being involved in an appeal before the Queensland Civil and Administrative Tribunal (QCAT). This appeal has been ongoing since 25 September 2019. It has been Mr Ritson’s intention to personally serve Mr Ryan at the hearing of this appeal, rather than his residential or business address in Victoria. This has merit given Mr Ryan has not been excused from appearing in person at the hearing of the appeal.
Service in the way intended by Mr Ritson has proven problematic in 2020. The problem has not been of his making.
Mr Ritson made the point that the QCAT appeal has not been heard, let alone allocated a hearing date. In this regard, he referred to a notice published on the QCAT website, which states:
“COVID-19 Notice
Due to the ongoing COVID-19 emergency, QCAT is currently experiencing longer than average times to finalise matters.”
As to the ‘longer than average times to finalise matters’, the QCAT website includes a table that identifies relevant averages. For an ‘appeal’, the average time stated is 34 weeks. This average is expressly qualified. The relevant notice also states ‘every matter is different’ and ‘your matter may take more or less time to finalise depending on its complexity’. The delay in finalising the QCAT appeal does not appear to be coming to an end any time soon. This delay has cut across Mr Ritson’s intended mode of service for the Claim.
Mr Ritson’s ability to personally serve Mr Ryan has been further complicated by the impact of Covid-19. The impacts are two-fold. First, if Mr Ritson is to attend to service himself, he would have to travel to Victoria and, upon his return to Queensland, quarantine for a period of two weeks at his cost. This requirement has been in place since 3 July 2020. Second, the affidavit material establishes that Mr Ryan’s address for service is located within ‘greater Melbourne’ and is a ‘Restricted Area’ for the purposes of a direction issued by the Chief Health Officer for Victoria. It is also the case that, at the time of the hearing, a state of emergency had been declared in Victoria. The directions given by the Chief Health Officer for Victoria in relation to restricted areas are, as was conceded by Mr Ryan, complex. It is fair to say that the restrictions, particularly those in place in the months leading up to the anniversary of the Claim, were strict. I accept that the restrictions impeded Mr Ritson’s ability to attend to personal service of the claim in Victoria.
At paragraph 17 of his affidavit, Mr Ritson said:
“Due to the ongoing delay with the hearing of the appeal proceeding in QCAT, and restrictions due to the declared state of emergency in Victoria, personal service of the Claim and Statement of Claim on the defendant is impractical.”
I accept this evidence to the extent Mr Ritson wished to attend to service of the Claim himself, rather than engage, and incur the cost of, a process server.
Fifth, Mr Ritson took a step before the first anniversary to deal with the service of the Claim. He made an application for an order for substituted service. The application was however listed for hearing after the anniversary had come and gone. The actual date allocated to hear the application on the papers was not a matter within Mr Ritson’s control.
Sixth, save for having to defend the Claim, Mr Ryan did not suggest he would suffer any particular prejudice if the renewal was granted.
Mr Ryan opposed the application to renew the Claim on four grounds, namely: (1) Mr Ritson has extensive legal training (and expertise) and knows the importance of court deadlines; (2) the intention to serve at QCAT is not credible; (3) Mr Ritson has made no effort over 12 months to serve the Claim in circumstances where there were many options available to him; and (4) the reliance placed on Covid-19 as an excuse is ‘very poor form’.
I accept the point advanced in item (1) above, although not in the terms articulated by Mr Ryan.
There was no evidence to suggest Mr Ritson has a degree in law, or is admitted to practice as a legal practitioner in any State or Territory of Australia. The litigation history between the parties, which I need not traverse, does however make it clear that Mr Ritson is an experienced litigator in a number of courts and tribunals. Unsurprisingly, he fairly conceded this in oral submissions. He also fairly conceded he understood the importance of court deadlines and the need to comply with the UCPR. In this context, the failure to serve the Claim before the anniversary date militates against an order renewing the Claim.
I do not accept the point advanced in item (2) above.
The point made by Mr Ryan was that he did not intend to travel to Brisbane for the hearing of the QCAT appeal. He said it had been his practice to appear by telephone on earlier mentions of the appeal, and would appear the same way for the hearing of the appeal proper. That may be so, but leave had not been granted by QCAT for Mr Ryan to appear by telephone for the hearing of the appeal. Further, until such leave was granted, it was, in my view, legitimate for Mr Ritson to have ‘an intention’ to effect service at that hearing in Brisbane. That intention has been thwarted by the matters discussed in paragraphs [16] to [20].
As to item (3) above, Mr Ryan contends that no meaningful steps were taken to serve the Claim in the 12 month period commencing 23 September 2019. He also contends that despite the impacts of Covid-19, Mr Ritson had three options to serve the Claim, namely:
(a) retain a process server to effect service in Victoria;
(b) apply for substituted service in ‘good time’ – that is, well in advance of the anniversary date for the Claim; and
(c) make arrangements to effect personal service himself.
To suggest Mr Ritson took no meaningful steps to serve the Claim within the 12 month period commencing 23 September 2019 ignores his evidence about the intended mode of service at the QCAT appeal. It also ignores that Mr Ritson made an application for substituted service within the 12 month period referred to. Accordingly, I do not accept the broad assertion that Mr Ritson took no meaningful steps to serve the proceeding.
I do, however, accept Mr Ritson could have adopted one of two courses identified in paragraph [31](a) and (b) above, but did not do so. This militates against renewing the Claim.
The course suggested in subparagraph [31](c) above is theoretically possible, but unrealistic. To suggest it is a course that could be adopted ignores the impacts of Covid-19 on travel from Queensland into Victoria and back again. This is particularly so since 3 July 2020. To the extent this point can be said to militate against renewing the Claim, it is a matter, in my view, that attracts little weight.
As to item (4) above, I reject the submission that reliance upon Covid-19 is ‘poor form’.
It almost goes without saying that the Covid-19 pandemic has significantly impacted day-to-day commerce and travel in this country in ways which many people would not have imagined. The impacts are often described as ‘unprecedented’. The impacts, particularly in more recent times, have been difficult for Victoria. The impacts have given rise to significant restrictions on day-to-day movement for people in, and travelling out of, Melbourne and Victoria. That Mr Ritson did not wish to expose himself to Covid-19 in Victoria, or associated restrictions mandated in that State and Queensland is, in my view, understandable. Mr Ryan downplayed the practical implications of these impacts. His submissions in this regard were underwhelming.
Whilst I accept some of Mr Ryan’s submissions raise points that militate against the exercise of the discretion to renew the Claim, I am satisfied those points should not be determinative of the application when balanced against paragraphs [13] to [25] above. The Claim will therefore be renewed. I will renew it for a further period of 6 months. Given Mr Ryan’s concession, it also follows that the order for substituted service should be made.
For completeness, it should be noted that on 1 October 2020 Mr Ritson filed an application to strike out scandalous material produced by Mr Ryan during the course of the hearing. Mr Ritson relies on r 973 of the UCPR for this application, which confers a discretion on the registrar to ‘refuse to file a document’ that contains scandalous material.
Mr Ritson provided a document to the court that identified, by way of redaction, those parts of Mr Ryan’s material to which his application was directed. I have carefully considered that document. I do not regard the redacted parts as ‘scandalous’, or of a nature that calls for them to be struck out. The purpose of Mr Ryan’s material was to prove two things: (1) there is an extensive history of litigation between the parties; and (2) Mr Ritson is an experienced litigator. Both points were relevant to the determination of the application to renew the Claim. Further, whilst some of Mr Ryan’s material is expressed in strong and uncomplimentary terms, I was not satisfied that it should be redacted because it would adversely impact on the Claim, or cause irreparable harm to Mr Ritson. To suggest the material would do so was to employ exaggeration. The application is therefore dismissed.
I order as follows:
1. The plaintiff’s Claim and Statement of Claim filed on 23 September 2019 be renewed under r 24(2) of the Uniform Civil Procedure Rules 1999 (UCPR) for a period of 6 months from the date of the order of the court.
2. Pursuant to r 116 of the UCPR, a copy of the Claim, Statement of Claim, Form 1 under section 16 of the Service and Execution of Process Act 1992 (Cth) and this order be served on the defendant:
(a) by sending them by express post addressed to the defendant at 101, Level 1, 546 Collins Street, Melbourne, Victoria, 3000; and
(b) by sending them by express post addressed to the defendant at 2B Great Valley Road, Glen Iris, Victoria, 3146.
3. The Claim and Statement of Claim shall be deemed to be served on the defendant 7 days after service in accordance with paragraphs 2(a) and 2(b).
4. The plaintiff is to file an affidavit demonstrating compliance with paragraph 2 of this order within 7 days of service being deemed to have occurred by operation of paragraph 3.
5. The plaintiff’s application to strike out scandalous material is dismissed.
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