FEDERAL COURT OF AUSTRALIA

Croker v Minister for Finance [2013] FCAFC 154

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The name of the respondent be changed to “Minister for Finance”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    This is an appeal against the decision of the primary judge to dismiss Mr Croker’s originating application for an order compelling the Minister to make decisions to pay Mr Croker compensation pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth). Such payments are known as “act of grace payments”.

2    The primary judge was not satisfied that Mr Croker had ever sought any act of grace payments in the way he claimed for which he had not received a response.

Background

3    Mr Croker asserted in his principal affidavit below that at about 1.30 pm on 21 October 2011 he had hand delivered a letter to a man who had identified himself as “David Hill” at the office of the Department of Finance and Deregulation in Parkes in the Australian Capital Territory. Mr Croker claimed in that affidavit that the letter sought compensation for alleged detriment to him caused by defective administration the subject of the decision of Rares J in Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1136. He asserted that Mr Hill said to him: “I will get started on it right away.”

4    Mr Croker retained no hard copy of the letter. He claimed in his oral evidence that a problem with his computer hard drive had hindered him in being able to retrieve a copy of the letter without his incurring expense that he was not able to meet. Over a year later, on 12 November 2012, Mr Croker sent a letter to the Minister’s Department marked to Mr Hill’s attention, that began:

“As your [sic] are aware late last year I hand delivered to you a claim for compensation for multiple acts and omission by the secretary that are alleged to contravene the laws of Australia and in particular the conduct of the DFHCSAIA throughout the application and up to and the decision of the Federal Court of Australia on the 8/10/2010.” (the latter being a reference to the decision of Rares J referred to above)

5    On 19 December 2012, the Department replied to Mr Croker’s letter of 12 November 2012 and his email of 17 November 2012. It said that for the previous two years the Department had not had any officer named David Hill and that, following a search of its records, it had found no trace of any earlier letter from Mr Croker to which he had referred.

6    Mr Croker’s affidavit demonstrated that he had been involved previously in 11 proceedings against the Commonwealth or its officers and instrumentalities. As a result of some of those proceedings, Mr Croker is now an undischarged bankrupt.

7    The then Minister tendered evidence below that a search of her Department’s records revealed that no person named David Hill was employed by it on 21 October 2011 (when Mr Croker claimed he was in Canberra) and it had found no record of any employee or contractor of that name at any time since 1998.

The primary judge’s decision

8    The primary judge found that he was not satisfied that Mr Croker had proved that he had delivered to the Minister or the Department any letter dated 21 October 2011, that made claim for an act of grace payment. His Honour found that Mr Croker had been unable to produce a hard or soft copy of any such letter. He found, correctly, that Mr Croker bore the onus of proof on that matter and had not discharged it. He also found that Mr Croker had refused to make a further request to the Minister subsequently on the same terms.

9    In his written submissions on appeal, Mr Croker asserted that he travelled to Canberra and delivered the letter to Mr Hill on 8 not 21 October 2011. In these appeal proceedings he had sought to have a subpoena issued to require the Minister to produce all claims he had made, but Jagot J refused that application.

10    In essence he relied on the reasons given by Rares J in Croker [2010] FCA 1136 as a source of his entitlement to an act of grace payment. That decision provided no support for such a claim. The reasons observed that the delegate of the Minister, who was not a party to those proceedings, had not appeared to apply an appropriate approach to the consideration of an earlier act of grace payment claim by Mr Croker. The judgment was given in the course of allowing Mr Croker to discontinue those proceedings after the delegate had reconsidered his then claim and granted it in the sum of $1,877.66. Mr Croker thus received all he was entitled to receive as part of the resolution of those proceedings.

11    Mr Croker argued on appeal that the Minister was requiring him to prove matters that the Minister knew to be true because he had made a further claim on 9 February 2011 to the Minister for Families, Housing, Community Services and Indigenous Affairs. Her Department acknowledged receipt of that claim on a letter dated 10 March 2011 and said that because the claim fell within the Minister for Finance’s responsibilities it had been referred to her office.

Consideration

12    Mr Croker’s argument has no coherence. Mr Croker made the claim, that was resolved by the payment of $1,877.66 in late 2010, a year before he asserted that he made his presently alleged claim on 21 October 2011. He did not identify any evidence of any other claim or its contents. There was no evidence identifying what the contents of the letter of 9 February 2011 were. Mr Croker’s affidavit and oral evidence made no reference to any failure to reply to that letter. It played no part in Mr Croker’s argument to the primary judge.

13    Mr Croker also asserted that he had some entitlement to an act of grace payment that arose out of the Attorney-General’s Legal Services Directions 2005 made under s 55ZF of the Judiciary Act 1903 (Cth). That claim was not included in the notice of appeal although Mr Croker referred to it in his oral and written submissions. The primary judge rejected that claim for the following reasons, which were correct:

“18     Whether the conduct of the Minister pursuant to s 33 of the Act falls within the purview of the Legal Services Directions need not be considered. It is sufficient to note that Mr Croker has no standing to allege any breach of the Legal Services Directions for two reasons:

1.    Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General: s 55ZG(2) of the Judiciary Act.

2.    The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth: s 55ZG(3) of the Judiciary Act.

19    Mr Croker was on notice prior to the commencement of this proceeding that any attempt to raise an issue of non-compliance with the Legal Services Directions would fail. Mr Croker was the appellant in the Full Court proceeding of Croker v Commonwealth of Australia [2011] FCAFC 25, in which Siopis, Tracey and Gilmour JJ said of the decision of the court below at [19]:

    “It was not necessary for his Honour to explore this issue [of non-compliance with the Legal Services Directions] further because compliance with the directions was not enforceable by Mr Croker and could not be raised in any proceeding other than by or on behalf of the Commonwealth: see s 55ZG of the Judiciary Act.”

20    For the reasons above the Court dismisses the application. It is unfortunate that these proceedings have been brought to Court in circumstances where, Mr Croker being aware that his application would be opposed for the reasons that David Hill was never an employee, and that the very foundation of his claim was in issue, he did not simply provide the Department with a separate request. Had he done so, this litigation may have been avoided.”

Conclusion

14    This appeal is, and the proceedings below were, an abuse of the process of the Court. The primary judge noted that before commencing them Mr Croker was aware that the Minister’s Department had no record of a David Hill being an employee when Mr Croker claimed to have hand delivered the unproduced letter on which he relied. Moreover, after being made aware of this Mr Croker did not send or make a further request for an act of grace payment identifying his claim and there was no rational basis for his asserting a right to such a payment based on the circumstances of the proceedings before Rares J.

15    Mr Croker was not prepared to pay to retrieve a copy of the unproduced letter from his computer. He has chosen a completely unreasonable and inappropriate means of pursuing his claim. He has caused the Court to be involved in both an action and an appeal that were foredoomed to fail. He raised an argument based on the Legal Services Direction that he knew was unsustainable because of the earlier decision of a Full Court against him on the point: Croker [2011] FCAFC 25 at [19].

16    As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [see, e.g. Metropolitan Bank v Pooley (1885) 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-130]. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them.”

17    These proceedings both at first instance and on appeal were foredoomed to fail. They were clearly frivolous and vexatious. In our opinion, it is time for the Registrar to give consideration as to whether to commence proceedings under Pt VAA of the Federal Court of Australia Act 1976 (Cth) for a vexatious proceedings order to be made against Mr Croker, as has been done by the Supreme Court of New South Wales: Attorney-General (NSW) v Croker [2010] NSWSC 942 leave to appeal refused: Croker v Attorney-General (NSW) [2010] NSWCA 355.

18    If the Minister had sought costs, this would have been a case where an indemnity order would have been appropriate.

Associate:

Dated:    5 December 2013