Ritson v Commissioner of Police, NSW Police Force

BELL P: This is an application for leave to appeal from a decision of R A Hulme J (the primary judge) sitting in the Common Law Division of the Supreme Court in which his Honour refused leave to appeal from a decision of the Local Court. Consent orders were entered by the Court of Appeal Registrar on 25 November 2019 to have this matter determined on the papers. The Local Court decision from which the applicant sought leave to appeal in the proceedings before the primary judge relates to a Local Court Magistrate’s (the magistrate) refusal to set aside a judgment entered against the applicant in the Local Court on 30 October 2015, following the filing of certificates of assessment and of the costs of the assessment in relation to earlier proceedings between the parties in this Court.

The applicant was a police officer in the NSW Police Force from 21 December 2001 until 10 March 2011 when he was discharged for work-related injuries. By 10 March 2011 he had reached the rank of Senior Constable. During the course of his service, the applicant made reports of police misconduct and a number of public interest disclosures alleging corrupt conduct by members of the NSW Police Force. One such member was attached to the Kings Cross Local Area Command. The applicant alleges that, subsequent to the complaints, confidential information relating to him was improperly accessed by members of the NSW Police Force and disclosed to third parties.

On 3 October 2012, the applicant’s solicitor wrote to an Inspector at the Kings Cross Local Area Command advancing a complaint against a Victorian resident, Mr Ryan, who the applicant alleges knowingly made false accusations to the NSW Police Force about the applicant. It was requested by the applicant through his solicitor that an investigation be undertaken in relation to that action. The NSW Police Force declined to investigate the complaint.

On 29 October 2012, the applicant filed a summons in the Supreme Court seeking an order in the nature of mandamus compelling the Commissioner of NSW Police to perform his duty under s 6 of the Police Act 1990 (NSW). Garling J dismissed the summons with costs on the basis that the Police Act did not create a legal obligation on the Commissioner to investigate complaints that was enforceable by a writ of mandamus: Ritson v Commissioner of Police [2013] NSWSC 1396 at [63]-[78].

The applicant failed to pay the Commissioner’s costs. The Commissioner filed certificates of assessment and of the cost of assessment in the Local Court and judgment was entered against the applicant on 30 October 2015. Some three years later, the applicant filed a notice of motion in the Local Court seeking to have the judgment set aside. The notice of motion was dismissed and the applicant was ordered to pay the Commissioner’s costs within 28 days.

The applicant subsequently filed an amended summons in the Supreme Court seeking leave to appeal from those orders. On 15 July 2019, the primary judge refused leave and ordered that the applicant pay the Commissioner’s costs. It is from that judgment that the applicant now seeks leave to appeal.

Three arguments were advanced by the applicant in the proceedings before the primary judge:

In refusing leave, the primary judge addressed the first ground on the basis that, while it was correct that the applicant had paid fees in the sum of $180 to the Commissioner under the Government Information (Public Access) Act 2009 (NSW) which he need not have paid, it was not appropriate that that amount be set off against the costs owing to the Commissioner under the judgment. This was “essentially because the GIPA application had nothing to do with the amount due under the order for costs”: at [12]. The primary judge also observed that the applicant had returned cheques sent to him by the Commissioner to refund to him the $180 owing preferring, it appeared to his Honour, to preserve his technical argument rather than to obtain the substantive relief he ostensibly sought. It was significant also to the primary judge that the amount concerned was so trivial that leave should not be granted to permit him “to pursue such an unattractive and seemingly baseless point”: at [14].

As to the second ground, the primary judge said that it “ha[d] nothing to do with the merits of whether [the applicant] is liable to pay the Commissioner’s substantial costs”: at [15]. So much was conceded by the applicant. The primary judge also observed that no authority was cited for the proposition that reasons for the cost assessment ought to have been filed in the Local Court with the costs assessment certificates: at [17].

The third ground of appeal sought to be advanced before the primary judge related to the decision in Kassem. That is a decision which was both criticised and distinguished in Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181 (Weber).

The decision in Weber was endorsed by Smith J in Ritson v Commissioner of Police, New South Wales [2018] FCCA 916 at [59]-[60], to which the magistrate was taken. In Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853, Lee J noted that the correctness of Kassem was not determinative of whether the whole of the amounts under the two certificates are owing: at [28]. These authorities were referred to by the primary judge who said (at [25]-[26]):

The primary judge accordingly refused leave to appeal and made a lump sum costs order in favour of the Commissioner in the sum of $11,000.00.

The applicant seeks leave to appeal from a refusal of leave to appeal from a discretionary decision of a Local Court Magistrate. He submits that his application for leave to appeal is made under Supreme Court Act 1970 (NSW) s 101(2)(r), being an appeal from a final judgment or order in proceedings of this Court. An order refusing leave to appeal is, however, interlocutory: Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152-153; [1982] HCA 9; Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 at [14]. The application for leave to appeal thus falls under s 101(2)(e) of the Supreme Court Act.

A decision whether or not to grant leave to appeal is properly classed as a matter of practice and procedure: see Collins v R (1975) 133 CLR 120 at 122; [1975] HCA 60. As such, even greater caution and restraint is justified on the part of appellate courts than that which is appropriate when considering applications for leave to appeal from interlocutory decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby v Baird [2019] NSWCA 48. The rationale behind this dictate is that articulated by Sir Frederick Jordan in In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323 (Will of Gilbert) that:

In my opinion, leave to appeal should be refused with costs.

There was no suggestion in the draft Notice of Appeal or in the Summary of Argument that the primary judge applied the wrong principles to the question of leave that was before him nor, in my opinion, is any injustice identified, let alone a substantial injustice. Nor is there any issue of public importance. Rather, the draft Notice of Appeal and the Summary of Argument largely rehash the unsuccessful arguments that were first put to the magistrate and then put to the primary judge with whose reasons, as set out in [8]−[11] above, I respectfully agree.

The application for leave to appeal in the present case is a classic instance of the vice to which Sir Frederick Jordan referred to in the passage I have set out above (at [14]) from Will of Gilbert.

To the extent that the applicant also seeks leave to appeal from the decision as to costs of the leave application before the primary judge, I would also refuse leave. It was entirely appropriate that costs be awarded and fixed in a lump sum, especially in light of the subject matter and history of these proceedings.

I would refuse leave to appeal with costs.

SIMPSON AJA: I agree with Bell P.