FEDERAL COURT OF AUSTRALIA

Croker v Philips Electronics Australia Limited [2003] FCAFC 43

PRACTICE AND PROCEDURE – application for leave to appeal – whether application in respect of a “judgment” – whether a direction by a Judge to the Registrar pursuant to 0 46 r 7A of the Federal Court Rules constitutes a judgment.

Federal Court Rules O 46 r 7A, O 52 r 10

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 applied

Croker v Philips Electronics Australia Limited [2002] FCA 1393 referred to

Croker v Philips Electronics Australia Limited [2000] FCA 991 referred to

Croker v Philips Electronics Australia Limited [2000] FCA 1516 referred to

CLAYTON ROBERT CROKER v PHILIPS ELECTRONICS AUSTRALIA LIMITED AND DICK SMITH ELECTRONICS PTY LIMITED AND TELSTRA CORPORATION LIMITED

N 1212 OF 2002

LEE, WHITLAM & JACOBSON JJ

13 MARCH 2003

SYDNEY

AN APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the third respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AN APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an application pursuant to O 52 r 10 of the Federal Court Rules (“the Rules”) for leave to appeal from an interlocutory judgment of the Court.  The application was heard at the same time as a like application in the matter of Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42, reasons for judgment in which were published immediately before the following reasons which are to be read in conjunction with those set out in Bizuneh.

2                     The applicant appeared in person.  The first and second respondents informed the Court, by their solicitors, that they would submit to any orders made on the application other than an order for costs.  The third respondent appeared by counsel and opposed the application.

3                     The application raised the same threshold issue addressed by counsel in Bizuneh andthe applicant was content to adopt the submissions made by counsel for the applicant in that matter.

4                     In about November 2002 the applicant attempted to file an application, supported by an affidavit, as an “originating document”.  A Registrar formed the view that the proposed proceeding would constitute an abuse of the process of the Court and pursuant to O 46 r 7A of the Rules sought a direction from a Judge to authorise the Registrar to refuse to accept the document.

5                     The Judge directed the Registrar accordingly and, perhaps in an abundance of caution, provided “Reasons for Judgment” in respect of that direction.  (See:  Croker v Philips Electronics Australia Limited [2002] FCA 1393.)  In July 2000 and October 2000 court orders had been made that proceedings commenced by the applicant, in similar form to the instant document, be dismissed.  (See:  Croker v Philips Electronics Australia Limited [2000] FCA 991; Croker v Philips Electronics Australia Limited [2000] FCA 1516).  Having regard to the earlier orders of the Court and to the contents of the document on its face, his Honour confirmed the Registrar’s opinion that commencement of a proceeding by the filing of the document would be an abuse of the process of the Court, or vexatious or frivolous conduct by the applicant, and directed the Registrar that the document not be accepted.

6                     The applicant seeks leave to “appeal” from that direction.  For the reasons set out in Bizuneh, the direction was not a judgment and the application is incompetent.  The application must be dismissed with costs.

Associate:

Dated:              13 March 2003