FEDERAL COURT OF AUSTRALIA

Croker v Commonwealth of Australia [2007] FCA 831

PRACTICE & PROCEDURE – application for leave to appeal from interlocutory orders of Federal Magistrates Court – whether decision attended by sufficient doubt – whether substantial injustice would result.

Federal Court of Australia Act 1976 (Cth)

Federal Magistrates Court Rules 2001

House v The King (1936) 55 CLR 499

Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397

CLAYTON ROBERT CROKER v COMMONWEALTH OF AUSTRALIA

NSD 504 OF 2007

EDMONDS J

24 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

2.                  The applicant pay the respondent’s costs

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from the orders of the Federal Magistrates Court (Lloyd-Jones FM) made on 23 March 2007.  Leave is required for an appeal to this Court owing to the fact that the orders are interlocutory in nature: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2                     The orders were made pursuant to rule 14.04 of the Federal Magistrates Court Rules 2001 and required the applicant for leave to produce to the Federal Magistrates Court a number of documents relating to his financial and taxation affairs going back to 1 January 2006, as well as documents relating to his commencement of proceedings in courts and tribunals naming the Commonwealth, or some other emanation of the Commonwealth, as a respondent or defendant, as well as documents recording any costs orders made by any court or tribunal in such proceedings, and that the respondent be granted access to the documents produced.

3                     The rule pursuant to which the orders were made provides the Federal Magistrates Court with a discretion as to the making of the orders and if leave to appeal were to be granted, the applicant could only successfully prosecute an appeal if he were to show that the exercise of that discretion miscarried: House v The King (1936) 55 CLR 499.  It is not sufficient that if I had been in the position of his Honour below, I would not have made the orders; it must appear that some error has been made in exercising the discretion.  Where, as here, there are no reasons, this is a difficult task.

4                     Leave to appeal an interlocutory judgment requires an applicant to satisfy the test laid down in Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397.  The applicant needs to satisfy the Court (1) whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by an appellate court; and (2) whether substantial injustice would result if leave were refused supposing the decision to be wrong. 

5                     The applicant, who appeared in person, did not put before me any material upon which I might conclude that the orders made below are attended with sufficient doubt to warrant them being reconsidered by this Court.  The only material that I had before me were the terms of the actual orders themselves.  I did not have the benefit of understanding the argument or the process of reasoning which led to the making of the orders.  No transcript was tendered.  That circumstance alone would be sufficient to lead to the conclusion that it was just not possible to conclude that the decision below was attended with sufficient doubt to warrant it being reconsidered by this Court, but when that is coupled with the fact that the making of the orders was pursuant to the exercise of a discretion and that there was no material to suggest that the discretion miscarried, one is impelled to conclude that any appeal has no prospects of success. 

6                     The second test in Décor, whether substantial injustice would result if leave were refused supposing the decision to be wrong, is, in my view, not satisfied in this case.  If the applicant is required to produce the documents the subject of the orders made below, this is not going to bring to bear upon the applicant any substantial injustice.  I was informed by counsel for the respondent that the making of these orders was a precursor to an application by the respondent that the applicant provide security for costs in respect of the proceedings in the Federal Magistrates Court and that such an application had been filed in that court subsequent to the making of the orders from which the application for leave to appeal is made today.

7                     In the hearing of the application for security for costs, considerations might arise as to whether an order that the applicant provide security for costs will, so to speak, lock him out of pursuing proceedings and in that context there might be an argument that some weight should attach to that consequence in the interests of the administration of justice.  But that is not a consideration which is relevant to the present application.

8                     The application for leave to appeal is refused.  The applicant must pay the respondent’s costs.

Associate:

Dated:         30 May 2007