Ritson v Commissioner of Police, New South Wales Police Force

Adjournment application

1. At the hearing on 4 June 2019, Mr Ritson appeared by telephone link from Brisbane. He was self-represented. As mentioned above, he made an application seeking to adjourn the hearing of the Commissioner's application pending a decision of the Legal Aid Review Committee (LARC). An affidavit in support of his application for adjournment was filed with the Court on 3 June 2019.
2. Mr Ritson submitted an online application for legal aid on 28 March 2019. At the hearing he informed me that his application for legal aid had been made on the basis of seeking representation for the whole of his proceedings against the Commissioner of Police; that is the application for leave to appeal, as well as the interlocutory application listed before me. Legal aid was refused on 16 April 2019.
3. Mr Ritson subsequently made an application for review to the LARC on 12 May 2019. That application was unresolved as at the date of the hearing on 4 June 2019. Mr Ritson had been informed that it can take the LARC six to ten weeks to decide an appeal against a decision to refuse legal aid.
4. In his LARC appeal form, Mr Ritson said (in response to the question: "Why are you appealing our decision?") that his case has "merit and raises public interest issues that are reasonably arguable". [2] At the hearing, Mr Ritson resiled from his assertion that the case involved public interest issues, informing me that Grounds 4 and 5 which he states raised the public interest issues referred to in the appeal form, would be withdrawn.
5. Section 57 of the Legal Aid Commission Act 1979 (NSW) provides: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
6. Mr Ritson submitted that the application for an adjournment should be granted in order for his "position to be properly put before the court", given the "serious repercussions that may apply [for] me if I'm not represented, or given an opportunity to secure representation". [3] He submitted that because he is self-represented, and "facing the State of New South Wales and legal representatives … I think it's a basic matter of fairness I be given an opportunity to try and secure that legal represention". [4] I invited Mr Ritson to address the reason why it had taken him until 28 March 2019 to make an application to legal aid when the matter was commenced in September 2018. He said that "it did not occur to me to apply to Legal Aid until that time". [5]
7. The application for an adjournment was opposed by the Commissioner. Counsel for the Commissioner submitted that there are "serious reasons" why an adjournment should not be granted. Primarily, the Commissioner's submissions proceeded on the basis that Mr Ritson's arguments in relation to an adjournment based on s 57 of the Legal Aid Commission Act had been run in related proceedings in the Federal Court before Lee J, and were rejected by his Honour as recently as 1 April 2019 and 6 May 2019. As part of his oral submissions, counsel for the Commissioner submitted that the full chronology in relation to Mr Ritson's dealings with the Commissioner was relevant to my determination of whether to refuse an adjournment.

A potted history of these and related proceedings

1. As alluded to above, the substantive proceedings against the Commissioner from which the matters before me arise were commenced by Summons filed in the Supreme Court on 29 October 2012. Garling J dismissed those proceedings with costs on 27 September 2013. [6] Those costs were not paid.
2. In respect of those costs, the Commissioner sought costs assessment under the Legal Profession Act 2004 (NSW). Mr Ritson did not participate in the costs assessment process. Costs certificates were issued on 7 September 2015 for a total of $43,966.79 (that is, $42,375.34 being costs and $1,591.45 being the costs of the assessment). A copy of the certificates was served on Mr Ritson and he was notified of their registration. The Commissioner then filed the costs certificates in the Local Court, a procedure by which an enforceable judgment against Mr Ritson was then obtained on 30 October 2015. The judgment remains unsatisfied.
3. On 7 December 2016, on the application of the Commissioner, the Official Receiver issued a bankruptcy notice on the basis of the judgment for $43,966.79 plus interest, claiming a total debt of $47,782.64. Mr Ritson was served with a bankruptcy notice on 22 March 2017.
4. Mr Ritson commenced proceedings in the Federal Circuit Court of Australia (FCCA) to set aside the bankruptcy notice by an application filed on 12 May 2017. After a series of interlocutory processes, the application was dismissed by Smith J on 20 April 2018. [7] On 11 May 2018, Mr Ritson filed an appeal against Smith J's judgment in the Federal Court of Australia (FCA).
5. As mentioned above (at [7]), at this point in the chronology, Mr Ritson filed a Notice of Motion in this Court on 16 July 2018 seeking to set aside the original costs order made by Garling J on 27 September 2013.
6. A few weeks later, on 26 July 2018, Smith J made an order for Mr Ritson to pay the Commissioner's costs in the FCCA proceedings in the sum of $36,409,50.
7. A few days after that, on 30 July 2018, Mr Ritson applied to the Local Court to have set aside the judgment that had been entered when the certificates of costs assessment were filed. The application, currently the subject of appeal in the proceedings before me, was dismissed by Kennedy LCM on 30 August 2018. Mr Ritson was ordered to pay $4,800 in costs within 28 days.
8. The following day, 31 August 2018, the motion to have the 2013 costs order set aside was heard by Garling J. Judgment was reserved and ultimately delivered on 21 December 2018, whereby his Honour dismissed the application. [8] Mr Ritson was ordered to pay gross sum costs of $6,000.
9. Mr Ritson sought leave to appeal against that judgment but leave was refused by the Court of Appeal on 10 May 2019. [9] Mr Ritson was ordered to pay the Commissioner's costs, which are unspecified.
10. In the early months of 2019, the FCA appeal against the dismissal of the application to set aside the bankruptcy notice was subject to case management in the Federal Court, having been adjourned by Lee J at several points during the second half of 2018 to accommodate the extant reserved judgment of Garling J. [10] The path was cleared by the Court of Appeal's refusal of leave to appeal against his Honour's judgment on 10 May 2019. The FCA matter was eventually determined by Lee J on 24 May 2019, in the last of three judgments delivered in the management of that appeal. [11]
11. Lee J handed down interlocutory judgments on 1 April 2019 and 6 May 2019. The 1 April 2019 judgment dealt with a similar application to adjourn on the basis of s 57 of the Legal Aid Commission Act as was argued before me on 4 June 2019. I note that his Honour's reasons for refusing the adjournment on 1 April 2019 at [38]-[42] include: an adjournment would be contrary to facilitating the overarching purpose and case management objectives under Pt VB of the Federal Court of Australia Act 1976 (Cth); the existence of special circumstances which prevent further adjournment; the matter's "long and lamentable history"; the nature and public interest in bankruptcy proceedings being resolved "with celerity"; the fact that the costs involved for the appearance of the Commissioner will not be recovered if Mr Ritson's assertions of impecuniosity are made out; and that the matter to be dealt with was interlocutory and not determinative of the merits of the appeal. [12]
12. Mr Ritson subsequently sought to reopen and set aside his Honour's decision to refuse the adjournment, a matter which was dealt with in the 6 May 2019 judgment. [13] There, Lee J dismissed this application, finding that while the application under s 57 of the Legal Aid Commission Act was "not entirely meritless", his Honour had not considered it "necessary or appropriate" to grant the adjournment at that time. He further found that "there has been no articulation of a basis which would cause me to reconsider the correctness of my earlier decision to refuse the adjournment". [14]

Reasons for refusing the adjournment

1. Having set out the position between the parties in this brief chronology, I now turn to my reasons for refusing to grant Mr Ritson an adjournment in the present proceedings.
2. The Civil Procedure Act 2005 (NSW) relevantly provides: 56 Overriding purpose … (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. …
3. As mentioned above, Mr Ritson has withdrawn Grounds 4 and 5 of the Amended Summons. These are the Grounds, it will be recalled, which he asserted in his LARC application for review raised issues of public interest.
4. Further, there is no basis for conclude that there is a reasonable prospect of legal aid being granted given the nature of the matter; specifically, this is a civil matter concerning an appeal from the Local Court and it requires leave under s 40(2)(a) of the Local Court Act. Moreover, it involves a dispute about costs which are unpaid in respect of proceedings initiated by Mr Ritson in which he was unsuccessful almost six years ago.
5. In addition, Mr Ritson has not established that the "appeal is bona fide and not frivolous or vexatious", pursuant to s 57(b) of the Legal Aid Commission Act. No evidence was placed before me as to Mr Ritson's financial position. There is nothing from which I could be satisfied he would pass a means test applied by Legal Aid, let alone a merits test.
6. The combined force of the following considerations is, I consider, sufficient to establish "special circumstances" for the purposes of s 57(c) of the Legal Aid Commission Act. First, there is the overarching purpose of the Civil Procedure Act is to facilitate the "just, quick and cheap" resolution of the real issues. Secondly, there is the lengthy history of the matter, briefly set out above at [15]-[26]. Thirdly, the costs incurred by the Commissioner of Police over the extremely lengthy period to date, extending as far back as October 2012, have been significant. None of these costs, the amounts of which have been enumerated above, have been paid. Finally, returning to the motion which was listed before me - that of the Commissioner's application for security for costs of the application for leave appeal - I note that the hearing which Mr Ritson is seeking to adjourn is not a final hearing on the substantive issues in the proceedings. Instead, it concerns an interlocutory issue which was, for the Commissioner, intended to minimise the risk and costs involved in this protracted litigation.
7. The effect of this is that the Court is not bound to adjourn the proceedings pursuant to s 57 of the Legal Aid Commission Act. There remains the general discretion to determine the application on its merits. I was not satisfied that there was any merit for the same reasons.
8. It was for these reasons that Mr Ritson's application to adjourn the hearing of the Commissioner's application for security for costs was refused.

Endnotes

1. Ritson v Commissioner of Police [2013] NSWSC 1396.
2. Affidavit, Brendan Ritson, 3 June 2019, annexure BR-3.
3. Tcpt, 4 June 2019, p 3(21)-(23).
4. Tcpt, 4 June 2019, p 10(1)-(4).
5. Tcpt, 4 June 2019, p 4(11).
6. Ritson v Commissioner of Police [2013] NSWSC 1396.
7. Ritson v Commissioner of Police, New South Wales [2018] FCCA 916.
8. Ritson v Commissioner of Police, New South Wales Police Force [2018] NSWSC 1999.
9. Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106.
10. Ritson v Commissioner of Police; New South Wales Police Force (No 3) [2019] FCA 853 at [1]-[5].
11. Ritson v Commissioner of Police, New South Wales Police Force [2019] FCA 853.
12. Ritson v Commissioner of Police, New South Wales Police Force [2019] FCA 475 at [38]-[42].
13. Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2019] FCA 662.
14. Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2019] FCA 662 at [11]-[12]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2019