FEDERAL COURT OF AUSTRALIA

Croker v Commissioner of Taxation [2004] FCA 1409

CLAYTON ROBERT CROKER v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

N977 OF 2004

EMMETT J

3 AUGUST 2004

SYDNEY

THE COURT ORDERS THAT:

1.         the notice of motion filed on 22 June 2004 be dismissed;

2.         the applicant pay the respondent’s costs of that motion.

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

REASONS FOR JUDGMENT

1                     On 3 May 2004 Mr Clayton Croker filed an amended application for an order of review.  In the amended application he made his claim in the following terms:

‘Pursuant to the Administrative Decisions (Judicial Review) Act (ADJR) 1977 (Cth) applicant seeks damages for negligence of a claim made to the respondent for defective administration pursuant to the Financial Management and Accountability Act 1997 (Cth) ss 44 and 52 and the Financial Management and Accountability Regulations 1997 (Cth) rr 6, 9 and 13.  The Federal Court of Australia has summary jurisdiction to hear the matter pursuant to the Judiciary Act 1903 (Cth) s 39B.’

2                     By the application Mr Croker claimed an order that the respondent, the Commissioner for Taxation (‘the Commissioner’), pay the sum of $5 million or such other sum as the Court deems fit.  The Commissioner, by notice of motion filed on 20 May 2004, sought an order that the amended application be struck out pursuant to Order 11 rule 16, or alternatively that the application be dismissed pursuant to Order 20 rule 2.  On 3 June 2004 Branson J ordered that the amended application be dismissed, and denied leave to Mr Croker to file a further amended application.

3                     Her Honour ordered Mr Croker to pay the Commissioner’s costs.  In her Honour’s reasons for those orders she observed that the amended application is not in, or substantially in, Form Number 56 in Schedule 1 to the Rules, as is mandated by Order 54 rule 2 of the Federal Court Rules.  As her Honour observed, no decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) applies is identified in the amended application.  Her Honour apparently discussed the deficiencies in the original application of Mr Croker at some length, and gave him leave to amend the application.

4                     It was pursuant to that leave that the present amended application was filed.  By motion filed on 22 June 2004, Mr Croker now seeks an order dispensing with the rules that require an application for leave to appeal from the interlocutory judgment to be filed within seven days, and an order granting leave to appeal from the orders made by Branson J.  Mr Croker does not suggest that he has a cause of action under the ADJR Act.  It is not clear at all precisely what claim he makes for damages.  If he does have a claim for damages for negligence against the Commissioner, the appropriate course is to commence a proceeding by way of application and statement of claim. 

5                     There is no error apparent on the part of Branson J.  There is no prospect of any success on the hearing of any appeal if leave were granted to file an application for leave to appeal out of time and leave to appeal were granted. 

Associate:

Dated:              1 November 2004