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[2019] FCA 1835
Federal Court of Australia
2019-09-11
Mr P, Katzmann JJ, Gummow ACJ, Kiefel JJ, Rares J
Original judgment source is linked above.
(REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for judicial review of the decision of a judicial registrar to reject for filing an interlocutory application that Brendan Ritson filed three weeks after a judge of the Court, on 6 June 2019, exercising the appellate jurisdiction, dismissed Mr Ritson's appeal from a decision of the Federal Circuit Court with costs: Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853.
Background 2 Mr Ritson had attended at the hearing of the appeal and made submissions to his Honour that his Honour addressed in his reasons that he delivered ex tempore on 24 May 2019. However, his Honour directed on that day that his orders not be entered until publication of his revised reasons for judgment, which occurred on 6 June 2019, and the formal order of the Court is dated on the latter day. 3 That brought to an end the proceeding. Despite this, Mr Ritson applied in interlocutory application dated 27 June 2019 that the orders entered on 6 June 2019 be set aside "for miscarriage of justice pursuant to the implied power of the court" and that the appeal be reheard according to law. 4 Mr Ritson supported his interlocutory application by a brief written submission, in which he asserted that the judge had wrongly put a heading above a section in his reasons for judgment that dealt with Mr Ritson's argument that a Ms Keating, a senior solicitor in the Office of General Counsel, New South Wales Police Force, did not have authority to issue a bankruptcy notice on behalf of the Commissioner of Police. Mr Ritson relied upon an assertion that the Court had an implied power to set aside a judgment after it had been entered where there had been a miscarriage of justice, based on what Gray, Lander and Katzmann JJ had said in Dib Group Pty Limited v Coolabah Tree Australia-Wide Pty Limited [2011] FCAFC 57 at [77].
Consideration 5 That argument was patently an abuse of the process of the Court. His Honour had dealt with the substance of the ground of appeal in his reasons. Even if he had not done so, that was an error within jurisdiction and was not a miscarriage of justice. Nonetheless, it is obvious on the face of his Honour's reasons that he dealt with the actual ground of appeal, after summarising its effect, and did so entirely accurately. 6 In Dib Group Pty Limited v Coolabah Tree Australia-Wide Pty Limited [2011] FCAFC 57 at [77] the Full Court referred to Taylor v Taylor (1979) 143 CLR 1 in support of the proposition that in cases where there had been a miscarriage of justice a court could set aside an earlier order. The High Court there held that a miscarriage of justice would occur where a party had had orders made against him or her where, without fault, the party had not known of the hearing and was therefore unable to appear. In such a situation, the court was not exercising its jurisdiction finally to determine a matter before it because the person was not present through no fault of him or her. 7 However, as Gummow ACJ, Hayne, Heydon and Crennan and Kiefel JJ made plain in Burrell v R (2008) 238 CLR 218 at 222-225 [13] - [24]. In particular they said at 224 [18]-[19]: The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy? The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality. (emphasis added.) 8 In his rejected interlocutory application Mr Ritson sought to re-litigate an issue that was finally determined when the orders of 6 June 2019 were perfected. There is no jurisdiction in the Court to allow that to occur. His application to the judicial registrar was an abuse of the process of the Court because it was foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393, per Mason CJ, Deane and Dawson JJ. 9 The present application is equally an abuse of the process of the Court. 10 The Commissioner of Police, no doubt mindful of Lee J's description of Mr Ritson as "an indefatigable litigant", appeared as an amicus curiae to assist the Court for the purposes of considering the present originating application. I am grateful to counsel for the Commissioner for his assistance.
Conclusion 11 I will order that the application be dismissed as an abuse of the process of the Court. That will mean that any attempt by Mr Ritson to try and re-agitate this decision will need leave. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Ritson
Registrar of the Federal Court of Australia