Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 Hearing dates: 29 April 2019 Decision date: 10 May 2019 Before: Gleeson JA at [1] Emmett AJA at [41] Decision: Summons seeking leave to appeal is dismissed with costs. Catchwords: APPEAL – leave to appeal – whether arguable error of primary judge – unsuccessful application to set aside costs order at first instance – where applicant did not make submissions on costs at first instance – whether applicant denied procedural fairness – content of obligation of procedural fairness in court proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Interpretation Act 1987 (NSW), s 19(1) Legal Profession Act 2004 (NSW) Police Act 1990 (NSW), s 24(1) Supreme Court Act 1970 (NSW), ss 65, 101(2)(c), (e) and (r) Uniform Civil Procedure Rules 2005 (NSW), rr 29.4, 36.15, 36.15(1), 36.16(3), 36.16(3A), 42.1 Cases Cited: Adamson v Ede [2009] NSWCA 379 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brown v Rezitis (1970) 127 CLR 157; [1970] HCA 56 Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Commonwealth v Sex Discrimination Commissioner and Others (1998) 90 FCR 179; [1998] FCA 1607 Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 Grygiel v Baine (No 2) [2005] NSWCA 434 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Kerr v Commissioner of Police (1977) 2 NSWLR 721 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; [2008] NSWCA 38 Muir v Jenks [1913] 2 KB 412 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Ritson v Commissioner of Police [2013] NSWSC 1396 R T Company Proprietary Limited v Minister of State for the Interior (1957) 98 CLR 168 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Sullivan v Department of Transport (1978) 20 CLR 323 Category: Principal judgment Parties: Brendan Ritson (Applicant) Commissioner of Police NSW (Respondent) Representation: Counsel: Brendan Ritson (Applicant – Self represented) Pouyan Afshar (Respondent) Solicitors: Brendan Ritson (Applicant – Self represented) Coleman Greig Lawyers (Respondent) File Number(s): 2019/21545 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2018] NSWSC 1999 Date of Decision: 21 December 2018 Before: Garling J File Number(s): 12/337024 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: Application is made by Mr Brendan Ritson for leave to appeal against orders made by Garling J on 21 December 2018 dismissing with costs a notice of motion filed by Mr Ritson on 16 July 2018: Ritson v Commissioner of Police, New South Wales Police Force [2018] NSWSC 1999 (the 2018 judgment). By that motion Mr Ritson sought to set aside an earlier costs order made in favour of the respondent (the Commissioner) on 27 September 2013 when the proceedings below for substantive relief were dismissed by Garling J: Ritson v Commissioner of Police [2013] NSWSC 1396 (the principal judgment). 2. Leave to appeal is required because the orders made by Garling J on 21 December 2018 are interlocutory orders: Supreme Court Act 1970 (NSW), s 101(2)(e). In addition, leave is required under s 101(2)(r) as the matter in issue does not amount to or exceed $100,000. 3. Both parties agreed that the matter could be dealt with by this Court on the papers. For the reasons that follow, leave to appeal should be refused. Background to the proceedings 1. Mr Ritson is a former police officer in the New South Wales Police Force. In October 2012 he commenced proceedings in the Common Law Division against the Commissioner seeking relief, by way of mandamus, pursuant to s 65 of the Supreme Court Act requiring the Commissioner to investigate his complaint that a Victorian resident had knowingly made false accusations to the New South Wales Police about Mr Ritson. 2. Garling J dismissed those proceedings on the ground that there was no enforceable duty to investigate a complaint such as that made against Mr Ritson. In addition, his Honour found that even if there was such a duty, the discretion to grant relief should not be exercised. His Honour made an order requiring Mr Ritson to pay the Commissioner's costs. 3. In the 2013 proceedings before Garling J, Mr Ritson relied upon supplementary written submissions which stated that he wished to be heard separately on the question of costs. Those submissions were made in response to the Commissioner's written submissions that included submissions on costs. Mr Ritson did not make any oral submissions on costs before Garling J, although he plainly had the opportunity to make such submissions. 4. Mr Ritson was present in court when the principal judgment was delivered on 27 September 2013, but did not make any submissions concerning costs. Nor did he make any application within the 14-day time limit specified in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(3A) to set aside the costs order relying upon the court's powers under r 36.16(3). 5. Mr Ritson did write to the Commissioner's solicitors on 8 October 2013 stating that he believed that he was denied procedural fairness and threatened to appeal the costs order. However, he did not appeal against the costs order. Any such appeal would have required leave given that the order sought to be challenged was "as to costs only which are in the discretion of the Court": s 101(2)(c), and given also that the amount in issue did not amount to or exceed $100,000: s 101(2)(r). 6. The Commissioner's costs were assessed in 2015 under the Legal Profession Act 2004 (NSW) for an amount which totalled $43,966.76. Judgment was entered in the Local Court of New South Wales in October 2016. The Commissioner sought to enforce the judgment by issuing a bankruptcy notice against Mr Ritson on 7 December 2016. It is not necessary to refer to the course of the bankruptcy proceedings in the Federal Circuit Court, or on appeal in the Federal Court. 7. On 16 July 2018, Mr Ritson applied by notice of motion to set aside the costs order made on 27 September 2013. Mr Ritson relied upon the Court's inherent power to set aside a judgment or order on the ground that a denial of procedural fairness can amount to a "fundamental irregularity", and the power under UCPR, r 36.15(1), which provides that, on "sufficient cause" being shown, a court may order the setting aside of a judgment given or entered, or order made, irregularly. Following a hearing on 31 August 2018, his Honour rejected Mr Ritson's application and on 21 December 2018 made the following orders: 1. Applicant's notice of motion filed 16 July 2018 is dismissed. 2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), order that the applicant pay the Commissioner's costs of the proceedings as a gross sum of $6,000. 1. Mr Ritson seeks leave to appeal against those orders. Issues on proposed appeal 1. The draft notice of appeal contains four grounds. The first issue is whether Mr Ritson was denied procedural fairness in relation to the costs order. Three of the grounds pertain to this issue. 2. Mr Ritson asserts that he was not given an opportunity to be heard on the question of costs before the costs order was made against him (ground 1). 3. Next, Mr Ritson asserts that the primary judge erred by conflating the discretionary considerations relevant to setting aside a costs order for irregularity pursuant to UCPR, r 36.15(1), with an entitlement to set aside the costs order ex debito justitiae for denial of procedural fairness (ground 2). 4. Mr Ritson also asserts that the primary judge erred in taking into account the delay in making the application. Mr Ritson submits that delay is not relevant because it is the duty of the creditor if he obtains a wrong judgment to have it set right, not the duty of the debtor against whom he has obtained the judgment to do so, referring to the remarks of Buckley LJ in Muir v Jenks [1913] 2 KB 412 at 415 (ground 4). 5. The second issue is whether the Commissioner is not a person at law and is not capable of receiving the benefit of a costs order (ground 3). Disposition of application Proposed ground 1 1. The primary judge accepted in the 2018 judgment at [53] that a denial of procedural fairness can amount to a "fundamental irregularity" that will entitle a person aggrieved to set aside an order as a matter of unconditional right, referring to Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5. His Honour also accepted that such a right is part of the Court's inherent power and can fall within UCPR, r 36.15, referring to Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; [2008] NSWCA 38 at [85]. No complaint is made in relation to his Honour's statement of the applicable principles. 2. The primary judge found at [55] that Mr Ritson had a number of opportunities to make submissions in opposition to an order for costs, including the costs order made on 27 September 2013. His Honour referred to the absence of any oral submissions on costs by Mr Ritson at the hearing in 2013, despite being present during that hearing, and although costs were substantively addressed in the Commissioner's written submissions. His Honour also observed that Mr Ritson was present at the time when judgment was handed down, but again did not make any submissions or application about costs at that time. 3. Mr Ritson submits that there was a reasonable expectation that the question of costs would be determined in the "usual way", which he described as being after the completion of the litigation and the decision given. There are two difficulties with this submission. 4. First, Mr Ritson's asserted understanding that costs would be determined after the delivery of judgment was not based upon anything said by the primary judge at the 2013 hearing that might give rise to an expectation of such a kind that the judge, in fairness, must either take that step or give notice of a change of intention: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) at [36] (Gleeson CJ). 5. Second, it is not the case that the "usual way" that the question of costs is determined is after the completion of the hearing and judgment has been delivered. That submission is inconsistent with the statutory framework within which the court may order costs, relevantly: 1. s 98(1) of the Civil Procedure Act gives the Court power to order costs to be paid on an ordinary or indemnity basis and provides that costs are in the discretion of the Court; 2. UCPR, r 29.4 provides that unless the Court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising from every claim for relief in the proceedings; 3. UCPR, r 42.1 provides that, subject to this Part, a court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs; 4. in applying the Act and the rules, the Court is required to give effect to the overriding purpose of facilitating the "just, quick and cheap resolution of the real issues in proceedings" pursuant to s 56, Civil Procedure Act. 1. Given the statutory framework, unless there is good reason to the contrary, the parties should address all of the orders for which the parties contend, including any order as to costs, in their written submissions and in their oral submissions at the hearing. 2. It has been observed that failure to address on costs is commonplace, and subject to the two qualifications mentioned below, may properly be taken by the Court as an indication that no special or unusual orders are required. Given the usual order with respect to costs is that they should follow the event, the Court is left to judge the precise terms of an appropriate order in the circumstances which eventuate in the judgment: Grygiel v Baine [No 2] [2005] NSWCA 434 at [11] per Basten JA (Mason P and Bryson JA agreeing), a case involving an application after judgment on appeal to vary costs orders. 3. The two qualifications identified by Basten JA in Grygiel v Baine at [12] are first, offers of compromise or settlement the terms of which should not be disclosed to the court prior to judgment, and second, complex cases which involve interconnected issues and possibly multiple parties. Neither of those qualifications arose in this case. Nor did Mr Ritson submit during the 2013 hearing that there was some other reason why special or unusual costs orders were required. 4. In Adamson v Ede [2009] NSWCA 379, Campbell JA (Giles and Hodgson JJA agreeing), referred to the content of the obligation of natural justice in court proceedings and said, relevantly for the present case, at [59]-[61]: [59] Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (original emphasis) [60] The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind." (emphasis added) [61] This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35]. (Emphasis added) 1. Plainly, Mr Ritson had a reasonable opportunity to make submissions on costs had he wanted to do so, and he did not take the opportunity during the 2013 hearing. By stating in his written submissions a wish to be heard separately on the question of costs, Mr Ritson sought to arrogate to himself a separate hearing on the question of costs to which he had no entitlement, nor legitimate expectation. 2. The primary judge was not required in the circumstances to afford Mr Ritson a separate hearing on costs. Nor was the Judge required to ensure that Mr Ritson took advantage of the opportunity to make submissions on costs during the 2013 hearing: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). The failure by Mr Ritson to address on costs at the 2013 hearing could be taken as indicating that no special or unusual costs orders were required. 3. There is no merit in proposed ground 1. 4. One further matter should be mentioned. Even if Mr Ritson had shown a reasonably arguable complaint of unfairness, the proposed appeal does have sufficient prospects to warrant a grant of leave, because it is not reasonably arguable that Mr Ritson was deprived of "the possibility of a successful outcome": Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54. The costs decision by Garling J was inevitable, so that a grant of relief would be futile. Accordingly, there is no "practical injustice" to Mr Ritson: Lam at [37]-[38]. Proposed ground 2 1. At [62] in the 2018 judgment, the primary judge found he was not satisfied that Mr Ritson had established that he was denied procedural fairness which constituted a fundamental irregularity before making a further finding at [63]: Furthermore, I am wholly unpersuaded that any order other than the usual order as to costs would have been made if the applicant had made further submissions. 1. Mr Ritson asserts that his Honour's remarks at [63] involved error by conflating the discretionary considerations that are relevant to whether "sufficient cause" has been shown to set aside a judgment or order under UCPR, r 36.15(1) with the question of whether Mr Ritson was denied procedural fairness and entitled to have the costs order set aside ex debito justitiae. There is no merit in this contention. His Honour's remarks referred to above were directed to whether there was any other reason why the costs order should be set aside in the exercise of the discretion under UCPR, r 36.15, not with respect to the asserted "fundamental irregularity" in making the costs order. Proposed ground 3 1. The primary judge rejected Mr Ritson's so called "legal personality" argument: that a costs order in favour of the Commissioner was an irregularity. The primary judge reasoned that, as a matter of construction of the Police Act 1990 (NSW), it is clear that only a natural person can be appointed to the Office of the Commissioner of Police by the Governor on the recommendation of the Minister: Police Act, s 24(1). Although the "Commissioner of Police" is an office, a reference to the Commissioner is a reference to a natural person, namely, the person who is appointed to the Office of the Commissioner from time to time: see also s 19(1) of the Interpretation Act 1987 (NSW). 2. Further, after observing at [73] that the "Commissioner of Police" was the correct respondent to the proceedings, rather than the individual who held the Office at the time the proceedings were commenced, citing Brown v Rezitis (1970) 127 CLR 157 at 169; [1970] HCA 56; Kerr v Commissioner of Police (1977) 2 NSWLR 721 at 724; Commonwealth v Sex Discrimination Commissioner and Others (1998) 90 FCR 179 at 191; [1998] FCA 1607, the primary judge found that an order made against the Commissioner would bind the person who holds the position from time to time. 3. Similarly, it may be added, an order in favour of the Commissioner would inhere in the person who held the position from time to time. There is no merit in Mr Ritson's contention that a costs order cannot be enforced by the Commissioner. Proposed ground 4 1. The premise of proposed ground 4 is that the costs order is a "wrong judgment" and hence, Mr Ritson is entitled ex debito justitiae to have it set aside as a "fundamental irregularity" relying upon Cameron v Cole and Miltonbrook. For the reasons already given, this premise is misconceived. 2. Insofar as his Honour took into account at [75] the considerable delay of Mr Ritson in seeking to re-open the litigation five years after the event, citing R T Company Proprietary Limited v Minister of State for the Interior (1957) 98 CLR 168 at 170, plainly that consideration was not relied upon with respect to the asserted denial of procedural fairness, but was relevant to whether Mr Ritson had otherwise shown sufficient cause for the discretion to be exercised to set aside the costs order under UCPR, r 36.15(1). Conclusion and Orders 1. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, leave will only be granted concerning matters involving issues of principle, questions of general public importance or involving an injustice which is reasonably clear, in the sense of being more than merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (Be Financial) at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. 2. The proposed appeal does not raise any question of principle or matter of public importance, nor has Mr Ritson demonstrated an injustice which is reasonably clear, in the sense of going beyond a merely arguable error. I am not satisfied that the proposed appeal has sufficient prospects to warrant a grant of leave. 3. There is an additional reason for refusing leave. It is well recognised that there is a need for restraint in granting leave to appeal in matters such as the present where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 2-3; and Be Financial at [37]-[39]. Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute. In this case, the costs of an appeal would be disproportionate to the relatively modest amount in issue of approximately $43,000. 4. Accordingly, I propose that the summons seeking leave to appeal be dismissed with costs. 5. EMMETT AJA: The question in these proceedings is whether the applicant, Mr Brendan Ritson, was denied procedural fairness by a judge of the Common Law Division (the primary judge) when the primary judge ordered Mr Ritson to pay the costs of the respondent, the Commissioner of Police. His Honour made the costs order in proceedings brought by Mr Ritson seeking relief under s 65 of the Supreme Court Act 1970 (NSW) in relation to the refusal of the Commissioner to investigate Mr Ritson's complaint that a Victorian resident had made false accusations about him. 6. In the principal proceedings before the primary judge, Mr Ritson made a written submission that he wished to be heard separately on the question of costs. That submission was made in response to the Commissioner's written submissions on costs. Although he had the opportunity to make oral submission to the primary judge when his Honour delivered judgment in the principal proceedings, Mr Ritson did not do so. Rather, some years after the order for costs was made, he applied by notice of motion to set aside the order. He did so in reliance upon the Court's inherent power and the power conferred by the Uniform Civil Procedure Rules. 7. The primary judge dismissed that application and Mr Ritson now seeks leave to appeal from that decision. I have had the advantage of reading in draft form the proposed reasons of Gleeson JA. I agree with his Honour, for the reasons proposed, that the application for leave should be dismissed with costs. ********** 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: 10 May 2019