Ritson v Commissioner of Police, New South Wales Police Force

1. The Commissioner's application for security for costs did not proceed to hearing on 4 June 2019 because of the Court's ability to offer an early date for the final hearing of Mr Ritson's application for leave to appeal. In the result, that final hearing has proceeded today and so the Commissioner's application for security for costs may be taken to have been withdrawn.

Leave to appeal

1. Although it was a decision of the Court of Appeal concerned with whether leave to appeal required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) should be granted, the relevant considerations noted in the judgment of Gleeson JA in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] are of guidance in considering whether leave should be granted in the present matter. His Honour said that "only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted". He referred to it being ordinarily appropriate only to grant leave "where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable".
2. Coincidentally, Gleeson JA affirmed those principles in Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [37].
3. The application to set aside judgment in the present case was to be determined pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR). It was necessary for the applicant to establish that "sufficient cause be shown". The history of the matter, and the very long delay before Mr Ritson made his application, would tend to indicate that a reason of some substance would have to be established to show "sufficient cause". This provides a context in which the question of leave should be considered.
4. With those considerations in mind the proposed grounds of appeal may be discussed with some brevity.

Ground 1 - the judgment sum should have been $180 less

1. Mr Ritson made an application in 2015 for the release of information by the Commissioner of Police under the Government Information (Public Access) Act 2009 (NSW) (GIPA). He paid fees in sums of $150 and $30. It transpired that he became entitled to those amounts being refunded. He claims that the Commissioner should have obtained judgment for $180 less than was obtained because that amount should have been deducted.
2. The argument was raised in the Local Court and rejected, essentially because the GIPA application had nothing to do with the amount due under the order for costs made by Garling J in 2013. It is notable as well that the Commissioner had sent cheques to Mr Ritson to refund him the two amounts but he declined to accept them. Despite his denial, I infer he preferred to preserve his technical argument about the judgment being invalid rather than receiving what he claimed was due to him. The issue may have been different if the $180 had been a payment made by Mr Ritson to the Commissioner as part reduction of the amount of the costs owing; but it was not.
3. There does not appear to be reason to doubt the correctness of the magistrate's decision on this point. In any event, the amount concerned is so trivial in the context of the amount of costs Mr Ritson owes the Commissioner that leave should not be permitted for him to pursue such an unattractive and seemingly baseless point. This is even more the case when one has regard to the extraordinary history of the matter.

Ground 2 - reasons for the costs assessment should have been filed in the Local Court with the costs assessment certificates

1. This is another argument that has nothing to do with the merits of whether Mr Ritson is liable to pay the Commissioner's substantial costs. He concedes this is so. Nevertheless, he claims that the certificate was "incomplete and irregular" because it was not accompanied by a statement of the costs assessor's reasons. He relies upon the fact that the certificates include that "a statement of reasons accompanies and forms part of this determination".
2. Mr Ritson contended in his oral submissions that in the case of costs certificates filed in order to obtain a judgment there was a requirement of stringent adherence to formal requirements as in the case of bankruptcy notices. Alternatively, he argued that the certificates were misleading for saying that they were accompanied by a statement of reasons which was not the case. There is no merit in these points.
3. Mr Ritson cites no authority for any of his propositions. The points have nothing to do with the real issue: Mr Ritson's liability to pay the Commissioner's costs. Even assuming there is merit, which is not apparent, this ground is not of such substance as to warrant a grant of leave. Again, the extraordinary history of the proceedings counts against a grant of leave for such an arid technical point to be pursued.

Ground 3 - insofar as the costs of the costs assessment are concerned, the judgment for that amount should have been in favour of the Manager, Costs Assessment to whom they were payable

1. At the heart of this ground is Mr Ritson's contention that the certificate concerning costs of the costs assessment should not have formed part of the judgment entered in favour of the Commissioner. He relied upon the decision of Ward J (as her Honour then was) in Kassem v Koutavas [2012] NSWSC 236. At [47] of that judgment, her Honour held that where two certificates are filed, there should be a judgment recording the costs payable to the successful costs applicant and also recording that the party liable to pay the assessed costs is to pay the costs for the assessment to the Manager, Costs Assessment.
2. Ward J was applying a legislative provision, s 369(8) of the Legal Profession Act 2004 (NSW). This had been superseded by s 71 of the Legal Profession Uniform Law Application Act 2014 (NSW) which provides (relevantly): 71 Certificate as to determination of costs of costs assessor and Manager, Costs Assessment … (3) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court against the party to the assessment by whom the costs are payable in favour of: (a) a party to the assessment that has paid some or all of the amount to the Manager, Costs Assessment - for that amount, and (b) the Manager, Costs Assessment - for any amount of unpaid money.
3. It is that provision which the magistrate found to apply (rather than the Legal Profession Act provision) and, as the costs of the assessment had been paid, she held that the amount was correctly entered as part of the judgment in favour of the Commissioner.
4. Contrary to a position adopted previously, the Commissioner now concedes that the correct regulatory regime that applied to the costs certificates and the judgment was the Legal Profession Act and its corresponding regulations. So, the Commissioner accepts that the learned magistrate was in error in this respect.
5. However, the magistrate did not rely solely upon s 71 of the Legal Profession Uniform Law Application Act. She was also referred to the decision of Garling J in Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181 (Weber v Aquaqueen) in which Garling J held (at [114]) that the earlier decision of Ward J should not be followed as it was plainly wrong. The effect of his Honour's judgment was that the costs which the successful party had paid, or was liable to pay, properly formed part of the judgment entered in favour of that party. After saying that Ward J's decision had been superseded and that the new statutory provision applied, the magistrate applied the essence of what Garling J had held in Weber v Aquaqueen: "But furthermore, in relation to Kassem, it would seem to me that in the particular case, on the facts, because the Commissioner of Police had paid the costs [of the assessment], they were, in fact, the party that were owed the costs. And as such, it's appropriate that the order would be made in his favour in this particular case."
6. Her Honour's attention was also taken to the judgment of Smith J in the Federal Circuit Court in Ritson v Commissioner of Police, New South Wales [2018] FCCA 916; (2018) 332 FLR 182. There, at [59]-[60], there was specific endorsement of the judgment of Garling J in Weber v Aquaqueen.
7. I note that in Ritson v Commissioner of Police, New South Wales Police Force (No 3), Lee J referred to the decision of Beazley P and Emmett JA in the Court of Appeal refusing to grant leave to appeal in respect of the judgment of Garling J: Aquaqueen International Pty Ltd v Weber [2014] NSWCA 101. Lee J said (at [28]): "With respect to their Honours, to the extent they identified no error, I share the same view. I do not consider that there is any reason to doubt the correctness of the reasoning extracted above by Garling J and it was entirely open to the primary judge to follow Aquaqueen as he did at [60]. Moreover, as Campbell AJA observed in [Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120] at [71], it was held by Ward J in Kassem, that the party who is required to pay the costs of the costs assessment is, in any event, required to reimburse the party that paid the costs in order to obtain the certificate. When this is understood, the correctness of Kassem is not determinative of the question of whether Mr Ritson still owes the whole of the money set out in the Local Court of New South Wales judgment as reflected in the bankruptcy notice issued by the Commissioner. Precisely why this would form a basis for going behind the judgment eludes me."
8. Critical to this ground is the fact, which Mr Ritson did not dispute, that the Commissioner had paid the costs of the assessment to the Manager, Costs Assessment. It would be illogical for judgment to have been entered in terms requiring Mr Ritson to also pay the Manager, Costs Assessment. Whichever statutory regime applied, the fact is that Mr Ritson should reimburse the Commissioner for not only the costs of the proceedings but also the costs of the assessment. For this reason, Mr Ritson's reliance upon Kassem v Koutavas and the inapplicability of s 71 of the Legal Profession Uniform Law Application Act does not avail him. The magistrate was correct to apply the logic and good sense inherent in the reasoning of Garling J in Weber v Aquaqueen.
9. Given the support for the judgment of Garling J in Weber v Aquaqueen, implicitly by the Court of Appeal's refusal of leave to appeal and expressly by Smith J in the Federal Circuit Court and by Lee J in the Federal Court, I see no sufficient basis for Mr Ritson being granted leave to appeal to persist with his argument to the contrary which is bordering upon an abuse of process. Again, an allied consideration is the extraordinary history of the matter which tells against providing an opportunity for a "technicality of the most arid kind" to be pursued now. [1]

Conclusion

1. The arguments advanced by Mr Ritson in the Local Court in favour of his application to set aside the judgment were each rejected by the learned magistrate. Those arguments, individually or in combination, failed to make good the requirement in r 36.15 of the UCPR that "sufficient cause be shown". They also fail to make good a case for this Court to grant leave to appeal. There is no apparent error of principle, question of public importance, or any injustice. The only discernible injustice is to the Commissioner, occasioned by the failure of Mr Ritson to pay the costs of the proceedings which were dismissed in 2013.
2. Continuation of this incessant litigation in pursuit of technical points that have nothing to do with the real merits of the case must cease in the interests of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW) and the rules of court in their application to civil proceedings. "Just, quick and cheap resolution of the real issues in the proceedings" is the antithesis of what has been going in this case for far too long.

Costs

1. Mr Ritson must pay the Commissioner's costs of yet another failed proceeding. The Commissioner contends that costs should be ordered on an indemnity basis. But in any event, what is sought is a lump sum order because otherwise there is likely to be a protracted taxation process. That is a very sound point given the history of these and related proceedings. There is clearly a need for the "avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation": Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23 at [9].
2. Mr Ritson applied for an adjournment of this part of the proceedings in order that he may give consideration to the terms of the judgment that I have just delivered. He foreshadowed this in his written submissions in reply. He should not have assumed that his application would be granted. There is nothing in my reasons that has any real bearing upon whether, and if so how much, costs Mr Ritson should be ordered to pay. Mr Ritson has been on notice of the terms of the order the Commissioner would seek, if successful, and of the amount. I refused the application for an adjournment.
3. Mr Ritson then argued that there had been disentitling conduct on the part of the Commissioner. One example was that the Commissioner had misled the Local Court magistrate as to the applicability of s 71 of the Legal Profession Uniform Law Application Act. I am satisfied that this was inadvertent. More importantly, it was not the only basis upon which the magistrate rejected Mr Ritson's contention that has been discussed in relation to Ground 3 of the proposed appeal. The Commissioner, correctly, succeeded in the alternative relying upon Weber v Aquaqueen.
4. Another example of asserted disentitling conduct was said to be breaches by the Commissioner of court rules and court orders. An example was the Commissioner's written submissions in the present matter being filed on 2 July 2019, whereas they were ordered to be filed by 1 July 2019. Given Mr Ritson disavowed any complaint of being disadvantaged by this, the example is of no moment. A further example was said to be a breach of an order made by the Registrar on 9 October 2018 whereby the Commissioner was required to serve certain material by 5.00pm on 30 October 2018 but the material was not filed until 5.14pm and 5.16pm on that date. That is simply trivial.
5. Making a lump sum order is not only fair in the circumstances of this case but is more consistent with the imperative in s 56 of the Civil Procedure Act. The costs that are sought are more than reasonable, having regard to the rates at which solicitors' and counsel's fees are generally taxed.
6. I note the following matters arising from the affidavit of Ms Hegarty, solicitor, of 12 June 2019: "A "Crown" rate applies to fees for both solicitor and counsel. This is significantly less in comparison to their normal rates. Costs for various aspects of work in relation to the proceedings are itemised (which have been subject to rounding) in respect of the proceedings to date and are estimated quite reasonably in relation to fees specifically relating to the hearing today. The amount for disbursements is relatively minimal ($265). The total amount, exclusive of GST, is in the order of $10,640."
7. Having regard to the very modest hourly/daily rate applying to both solicitor and counsel, I do not consider it appropriate to apply any specific discount to take into account contingencies that would be relevant in any formal costs assessment.
8. A reasonable sum, including GST and rounded, is $11,000.

Orders

1. I make the following orders: 1. Leave to appeal refused. 2. The applicant is to pay the respondent's costs in the sum of $11,000.

Endnote

1. Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120 at [72] per Campbell AJA. 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: 16 July 2019