FEDERAL COURT OF AUSTRALIA

Croker v Deputy Registrar of the High Court of Australia

[2003] FCA 628

CLAYTON ROBERT CROKER v DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA & ANOR

N134 of 2003

MADGWICK J

15 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The appellant provide security for the payment of the second respondent’s costs that may be awarded against the appellant, in the sum of $8,000.

2.                  The security shall be given by way of bank guarantee or in other form satisfactory to the Registrar.

3.                  The appeal be stayed until that security is provided.

4.                  The appellant pay the second respondent’s costs of his notice of motion for security for costs filed 8 April 2003.

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

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is an application under s 56 of the Federal Court of Australia Act 1976 (Cth) for security for costs on appeal from a judgment of Allsop J given on 3 February 2003 (2003) FCA 34.  Among other things s 56 of the Act provides that:

‘(1)   The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her.

(2)     The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.’

2                     Subsection (5) says:

‘This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.’

3                     Order 28 provides for the procedure in relation to applications for security of costs generally and appears to be intended to apply to applications for security for costs in appeals.  Order 52 provides for the general procedure in relation to appeals.  Rule 20 provides:

‘Unless the Court or a Judge otherwise directs no security for costs of an appeal to the court shall be required.’

4                     In Paton, S v Campbell Capital Ltd [1993] FCA 449, cited in a number of cases thereafter, most recently Dranichnikov v Centrelink [2002] FCA 1622 at [10] (per Spender J), Burchett J said that it places “something of an onus” on an applicant for security for costs to direct that security should be provided.

5                     There has long been a rule of practice and justice that poverty is no bar to a litigant.  However, the view is taken that there was an exception to this salutary rule in the case of appeals on the basis that the appellant had already had the benefit of a decision of a court.  Thus, an insolvent party unsuccessful at the first instance, but seeking to appeal, had not been shut out from the courts on account of impecuniosity but, as Ballam LJ put it in Cowell v Taylor (1885) 31 ChD 34 at 38, would be “… only prevented, if he cannot find security, from dragging his opponent from one Court to another”.

6                     The correct, modern approach, I think, was set out in Australian Solar Mesh Sales Pty Ltd v Anderson (1999) 48 IPR 15 at 17 [11] by Sackville J.  That is, that the impecuniosity of the appellant enlivens the power of the Court to make an order for security for costs pursuant to s 56 of the Act, but it remains necessary to consider whether, as a matter of discretion, the Court should make an order in favour of the respondents.

7                     There is no doubt that Mr Croker is impecunious and there is a substantial likelihood that the second respondent in the principal proceeding, the applicant here, could not recover his costs of the appeal from Mr Croker.  Further, the evidence shows that whatever the effect Dr Challoner’s dental treatment may have had on Mr Croker, and in respect of which Mr Croker has used Dr Challoner, Mr Croker was already impecunious, so that the impecuniosity does not arise from the conduct of the party about which the appellant makes complaint.

8                     In Bates v Omareef Pty Ltd (4 May 1998 , unreported) Hill J said:

‘No doubt where a court is of the view that the appeal is without real merit or substance or that the issue sought to be litigated in the appeal is not one of any real importance, a court would likely exercise a discretion to order security for costs in an appeal, at least where there is a real prospect that the

respondent would be left without remedy should the appeal not succeed and an order for costs be made in it.’

9                     With respect, I agree with that approach. 

10                  In my opinion, it is quite clear that this appeal is hopeless.  Allsop J was dealing with an application for relief said to be made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) against a Deputy Registrar of the High Court of Australia, Mr Gray in respect of what the application described as a decision of that officer given on 14 September 2001 under O 69A r 13(1) of the High Court Rules.  The underlying High Court proceedings were an application for special leave to appeal against orders of the New South Wales Court of Appeal which had dismissed a motion for review of a judgment of Giles JA dismissing what was, in essence, an application for extension of time to appeal against a decision of a District Court judge.  Judge Sinclair QC had on 6 August 1999 ordered that an action by Mr Croker against Dr Challoner in the District Court claiming damages in relation to dental treatment should be struck out on the grounds that the pleading did not disclose any reasonable cause of action and that, despite ample opportunity to do so, Mr Croker had not provided particulars requested by Dr Challoner’s solicitors which may have enabled content to be given to the pleading.

11                  In the High Court there were delays in filing and serving the application books.  On 14 September 2001 it appears that Mr Gray told Mr Croker that the latter would need to file his application books on that day or he would be at risk of the application having been deemed to be abandoned.  The books were not filed and Deputy Registrar Gray on 14 September 2001 wrote a letter to Mr Croker telling him that as he had failed to comply with the relevant provisions of Order 69A of the High Court Rules, his application for special leave to appeal was deemed to have been abandoned as from that date.

12                  Order 69A r 13(1) provided for such deemed abandonment upon certain procedural failures, of which the filing of the application books was one:

‘…unless the Court or a Justice or Registrar has otherwise ordered or directed.’

13                  As Allsop J observed at [25]:

‘The effect of the subrule itself is to cause the application to be deemed abandoned, which consequence is avoided by the “Court or a Justice or Registrar” otherwise ordering or directing (“Registrar” includes Deputy Registrar: O 1 r 5).  Thus, the decision or act of the Deputy Registrar at this point could be no more than a decision not to order or direct otherwise for the purpose of Order 69A r 13.’

14                  The proceedings before Allsop J were marked by efforts by his Honour to explain to Mr Croker that if, as the latter asserted, he had a valuable claim against Dr Challoner not then joined to the proceedings in this Court, Mr Croker should “perhaps take all steps possible to resuscitate his High Court application”.  Allsop J explained that if [Mr Croker] did this, a Justice of the High Court, upon having the matter explained to him or her with evidence, might reverse the abandonment.

15                  Among other things, Allsop J also told Mr Croker that if he proceeded in this Court without exhausting his remedies in the High Court he would need to join Dr Challoner because of the latter’s “obvious interest in the matter”.  On 21 February 2002, in what his Honour called “an extended directions hearing”, his Honour tried to help Mr Croker further, and laid out for him all that was necessary to be done to re-approach the High Court.  His Honour stood the matter over until 26 March 2002 indicating that should Mr Croker not wish so to move the High Court he should join Dr Challoner who should be asked to attend on the next occasion.  In early March 2002, Mr Croker, as his Honour records, made an inquiry of Deputy Registrar Carlsund:

‘… seeking help of a practical nature as to the appropriate way to set aside the abandonment of the proceedings.  On 6 March 2002, Deputy Registrar Carlsund wrote a letter to Mr Croker (which was sent by email) in the following terms:

I refer to your e-mail of 4 March 2002 inquiring about an application to this Court to set aside the deemed abandonment of the above matter.

You have two options:

1.        File a further application for special leave to appeal in which you seek an order to dispense with the requirements of Order 69A Rule 3(1).  You will need to file an affidavit in support together with the documents listed under Order 69A Rule 2(2).

2.        File a Chamber Summons with an affidavit in support.  This is not an application in the nature of a review of Registrar Grey’s decision, but

a summons seeking an order of a Justice invoking the power of the Court referred to in Order 60 Rule 6 of the Hight Court Rules.’

16                  As his Honour says at [31]:

‘Notwithstanding the clarity and simplicity of the advice, Mr Croker decided to make no application to the High Court, nor did he take any further steps in the High Court in an effort to resuscitate or replace his application for special leave.’

17                  Documents were sought by Mr Croker from the High Court.  This court requested that the High Court furnish those documents and they were produced and tendered.  His Honour canvassed a number of seeming difficulties with the application before him and concluded as follows:

‘In the light of the evidence, I prefer to base my decision in respect of the AD(JR) Act claim on the failure of Mr Croker, on the merits, to make out any substantive argument or any foundation for a substantive argument.  On the evidence before me there is no basis for a claim that the Deputy Registrar:

(a)               denied Mr Croker any aspect of procedural fairness;

(b)               failed to follow procedures otherwise required by law;

(c)               lacked jurisdiction or committed any jurisdictional error;

(d)               improperly exercised any power by failing to take into account any consideration, let alone any consideration required by legislation or other law to be taken into account, or by exercising any power in bad faith, or by exercising a power in accordance with a rule or policy without regard to the merits, or by exercising any power in a manner so unreasonable that no reasonable person could have exercised the power in that way, or by exercising the power in an abusive way.

In short there is no foundation whatsoever under any of the claimed heads of review. 

Others may have given Mr Croker more time.  However, I see no basis to criticise the Deputy Registrar’s conduct at all.  The wide ranging, unarticulated and serious assertions of wrong-doing on the part of the Deputy Registrar are without any foundation.

Further, even if I be wrong in any regard above, I would grant no relief in the light of the available course which I proposed and about which Deputy Registrar Carlsund advised Mr Croker.  In the light of an available method of overcoming his present circumstances in the Court which was seized of the matter, being a court superior to this Court in the federal hierarchy, a course deliberately considered and hitherto (for over one year) rejected, I would see no basis for granting any relief under the AD(JR) Act, even if some ground had been made out, which I cannot see.

s 39B of the Judiciary Act

The Deputy Registrar is undoubtedly an officer of the Commonwealth.

Certiorari is sought.  Jurisdiction to grant it is not vested by s 39B of the Judiciary Act.  I leave to one side whether it is within the Court’s jurisdiction by reason of the operation of s 32 of the Federal Court of Australia Act 1976 (Cth).  The Court has jurisdiction to grant an injunction: subs 39B(1).  Such an order could be moulded to stand procedurally as a substitute for certiorari if otherwise available.  I leave to one side whether this Court has power to order an officer of the High Court to do or not do anything.

The grant of remedies identified in subs 39B(1), if otherwise available, is dependent upon the existence of a lack of jurisdiction in, or jurisdictional error exhibited by, the officer.  No such jurisdictional error has been demonstrated as even arguable.  Further, to the extent that such remedies may be seen as discretionary, I repeat what I said in [46] above.

For the above reasons the application should be dismissed.  I see no basis whatsoever for any resistance to an order for costs.  The application has displayed no substantive merit at all.  If Mr Croker had had legal advice, and if he had persisted with the proceedings, a question of indemnity costs would certainly have arisen.  Dr Challenor has been put to further expense in a case which lacks merit entirely, and in respect of the substance of which another Court could have dealt with the matter substantively (and indeed may still be able to do so).  In these circumstances, I will grant the second respondent leave to apply to argue for a special costs order.

18                  The notice of appeal, read with an extreme of charity, would appear to suggest the following errors made by Allsop J:  that he had erred in not accepting the submission that Deputy Registrar Gray had failed to accord procedural fairness to Mr Croker; that he had erred in failing to appreciate that, as a matter of law, the Deputy Registrar should have maintained and followed an alleged practice and procedure more forgiving of tardy applicants than had been the case with Mr Croker; that his Honour had failed to accord Mr Croker natural justice or procedural fairness and that his Honour, in particular, was biased.  The accompanying affidavit suggested that his Honour was biased or had been procedurally unfair: 

‘(i)       leaving the order to joinder the second respondent to the proceedings to long after process and pleading were filed.

(ii)       stating in a directional hearing “this will ruin the High Court of Australia”.

(iii)      reading the sum of $100,000,000.00 (one hundred million) as $1,000,000.00 (one million).

(iv)      the instructing the Registrar of the Federal Court of Australia to charge me the sum of $3 for the application and $1 thereafter per page for Photocopying being knowledgeable that the Federal Court of Australia Regulations state that this fee is wavered if the applicant is a recipient of an Australian Government Disability Support Pension (this decision was later retracted by the learned trial judge after an interlocutory appeal.

(v)       the stating in a directional hearing that the matter should be set down for hearing for two days or longer.  And the further statement that the matter would be heard with both parties restricted to (1/2) one half hour in evidence in chief and all other to be by written submission (on the day of hearing the learned trial judge extended the time for evidence in chief to (1) one hour.’

19                  The only possible error made by his Honour was to go too far in trying to help Mr Croker to assert any valuable right that he might have had.  His Honour would have denied Dr Challoner procedural fairness had he not ordered that he be joined.  In doing so, his Honour was clearly motivated by trying to assist Mr Croker to assert a different remedy for his predicament, one more apt than the proceeding before his Honour.  There is no arguable basis of procedural unfairness on the part of his Honour, let alone ostensible or actual bias. 

20                  The reference to some unknown event possibly “ruining” the High Court is meaningless without the provision of other context, none of which has been sought to be explained to me.  The remark, on its face, is redolent of an effort by his Honour simply to alleviate the dismal grey of a legal proceeding with a spirited and hyperbolic remark. 

21                  Misreading a figure is a ludicrous notion as a foundation for a denial of procedural fairness or, more specifically, for a manifestation of ostensible or actual bias.

22                  An interlocutory direction or order about charging Mr Croker for photocopying is patently explicable as an effort simply to preserve the public purse against a depredation even, if small, by Mr Croker in what was plainly a hopeless proceeding before his Honour.  As Mr Croker’s affidavit itself says, any such direction:

‘was later retracted by the learned trial judge.’

23                  Directions to the parties as to time limits are common, even if there has been an earlier indication that a more generous time limit will be available.  There is nothing to

indicate that any actual prejudice did, was likely to or could follow from any such time restriction. 

24                  Normally a single Judge dealing with an application of this kind should exercise great circumspection in speculating on the prospects of success of an appeal, if it appears that any reasonable hope at all might repose in the breast of the appellant, but that is not this case.

25                  Finally, as the advice from Deputy Registrar Carlsund to Mr Croker indicated, quite apart from the proceedings begun in this Court, there are available to Mr Croker in the High Court two ways of approaching the matter.  If it is possible that he has diminished his chances of success by following either of those routes through persisting in the proceedings here, that is not something to be held against the present applicant for security for costs.

26                  I consider that this is an appropriate case for security for costs and will so order.

Associate:

Dated:              18 June 2003