FEDERAL COURT OF AUSTRALIA

Croker v Commonwealth of Australia

[2008] FCA 972

TRADE PRACTICES – consumer protection – claim for damages – application for leave to extend time in which applicant could seek leave to file application for leave to appeal from interlocutory order – relevant principles

PRACTICE AND PROCEDURE – single judge of Federal Court held that proceedings were abuse of process and frivolous and vexatious – proceedings dismissed pursuant to O 20 r 5(2) of Federal Court Rules – nature of such order is interlocutory

Held:  Application dismissed  

Trade Practices Act 1974 (Cth), s 52

Federal Court Rules, O 52 r 10(2A)(b), O 20 r 5

Bienstein v Bienstein (2003) 195 ALR 225 followed

Jackamarra v Krakouer (1988) 195 CLR 516 applied

Jess v Scott (1986) 12 FCR 187 cited

R v Secretary of State for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 cited

Re Luck (2003) 203 ALR 1 followed

Rivera v Minister Administering the Extradition Act 1988 (Cth) (2007) 164 FCR 116 cited

SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 cited

Walton v Gardiner (1993) 177 CLR 378followed

CLAYTON ROBERT CROKER v COMMONWEALTH OF AUSTRALIA

NSD 576 of 2008

RARES J

20 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs taxed on an indemnity basis.

3.                  The applicant not file any further proceedings in this Court, or in the Federal Magistrates Court of Australia, relating to his claims made in respect of his purchase of cuff links from the High Court of Australia in 2003, including claims made in respect of or related to those in proceedings entitled Croker v Commonwealth of Australia,previously NSD 2478 of 2006 in this Court and subsequently renumbered SYG 548 of 2007 of the Federal Magistrates Court, as well as in NSD 2376 of 2007 in this Court without the leave of a judge of this Court or a federal magistrate, as the case requires, unless:

(a)                the applicant provides security in the sum of $30,000, or such other sum as may appear to a judge or federal magistrate to be appropriate as security for the costs of the Commonwealth in any such proceedings;  and

(b)               the applicant has first paid the costs ordered to be paid by him in the Federal Magistrates Court in proceedings SYG 548 of 2007 and by this Court in each of proceedings NSD 2376 of 2007 and NSD 576 of 2008.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for leave to extend the time in which the applicant may file an application for leave to appeal against a decision of Cowdroy J.  His Honour dismissed the proceedings before him as being an abuse of the process of the court and also found that they were frivolous and vexatious within O 20 r 5(1)(a) and (b):  Croker v Commonwealth of Australia [2008] FCA 452.

2                     His Honour set out in detail in his reasons why the proceedings were an abuse.  In my opinion there is not the slightest reason to doubt that his Honour was correct, for the reasons that he gave, that they are correctly characterised as an abuse of the process of this Court.  As his Honour noted, the claim arose out of Mr Croker’s dissatisfaction with his purchase of a pair of cufflinks for $50 from the High Court of Australia in late 2003.

3                     Despite a number of attempts by him to litigate those matters of dissatisfaction in the Consumer, Trader and Tenancy Tribunal of New South Wales, before the Supreme Court of New South Wales, in the High Court of Australia and in this court, Mr Croker ultimately had proceedings, which he had instituted in this Court, transferred to the Federal Magistrates Court in early 2007.  They came before Lloyd-Jones FM, who ordered Mr Croker to provide security for costs of the Commonwealth in the sum of $30,000 by 4.00 pm on 11 September 2007 and Mr Croker was also granted leave to file and serve an amended application by that date.  He neither provided the security for costs nor filed any amended pleadings pursuant to the leave granted to him.  Instead, before the expiry of the time fixed by the Federal Magistrates Court for those steps to be taken, he filed an application in this Court seeking leave to appeal against those orders.  Buchanan J dismissed that application on 17 October 2007:  Croker v Commonwealth of Australia [2007] FCA 1593. 

4                     On 31 October 2007, Lloyd-Jones FM stayed the proceedings in the Federal Magistrates Court pending the payment of the amount for security for costs and ordered that, if that security were not paid by 5.00 pm on 16 November 2007, the proceedings in that court would be dismissed.  Mr Croker did not pay that amount.  On 6 March 2008, Lloyd-Jones FM dismissed the proceedings and ordered Mr Croker to pay the costs of the Commonwealth.

5                     In the meantime, on 4 December 2007 Mr Croker instituted proceedings that were ultimately the subject of Cowdroy J’s judgment in which he claimed $200,000 based on, as his Honour found, the same facts as had been relied on in the Federal Magistrates Court proceedings. 

6                     The absurdity of this claim is self-evident from the damages sought, the basis for which Mr Croker never particularised.  The purchase of a $50 pair of cufflinks, however defective, could not conceivably give rise to a claim for damages of $200,000.  The proceedings had, on their face, a demonstration of their vexatiousness and absurdity.  Cowdroy J, found that the facts giving rise to Mr Croker’s claim and the relief he sought were the same as he had sought in the Federal Magistrates Court, except that the damages he had claimed had increased from the original $100,000 to $200,000. 

7                     Although Mr Croker made claims under s 52 of the Trade Practices Act 1974 (Cth), in contract for breach of warranty and damages for “wrongfully defending a claim”, it is impossible to see how anyone could claim for a simple consumer purchase of $50, damages in an amount of either $100,000 or $200,000.  His Honour found that Mr Croker had a genuine belief that the proceedings before him had been instituted after the Federal Magistrates Court proceedings had come to an end on 31 October 2007.  However, Cowdroy J said that the institution of the current proceedings before him had been made in respect of the same claim.  He found that identical circumstances prevailed except that Mr Croker had increased the amount of damages which he particularised as having been suffered. 

8                     His Honour pointed out that Mr Croker had led no evidence to suggest he might be impecunious or otherwise unable to pay the amount of security for costs ordered by Lloyd-Jones FM.  His Honour set out Mr Croker’s explanation, as to why he had not proceeded in the Federal Magistrates Court, which he gave to Cowdroy J at the hearing of the application in which his Honour found the proceedings to be an abuse of process:  see Croker [2008] FCA 452 at [54].  Mr Croker told Cowdroy J:

“Your Honour, I found that there was a security for costs issue that was difficult for me to meet also the production of documents was being to be insisted which I thought were irrelevant relevant [sic] to the matter and I was really looking at the legal services directions, your Honour and my understanding is that they are enforceable under the Judiciary Act 1903.” 

9                     The last reference was to the directions under s 55ZF of the Judiciary Act 1903 (Cth) given by the Attorney General as to how litigation ought be conducted on behalf of the Commonwealth.  Cowdroy J also asked Mr Croker how he quantified his claim for damages.  He suggested that “opportunity costs would be won”, identifying the opportunity in the following exchange which his Honour set out:  Croker [2008] FCA 452 at [55]. 

“MR CROKER:  Your Honour, I would have to go into more detail to give you – I’d have to more time.

HIS HONOUR:  All right.  I’m ready to hear that detail. 

MR CROKER:   Your Honour, I wouldn’t be able to do it straight away.  I’d have to do some research and give you exactly what would be legally ‑ ‑ ‑ 

HIS HONOUR:   You mean to say at the moment you cannot quantify your loss. 

MR CROKER:   Well, your Honour, I would estimate it as a nominal amount in damages or loss in the way that it is an amount which I think is reasonable for –”

10                  As his Honour found, the Commonwealth’s request for particulars of damages sought in the Federal Magistrates Court proceedings was an appropriate step.  In the absence of any response it was also appropriate that the Commonwealth sought an order that Mr Croker provide documents to support that claim.  He did not comply with that order and that led to the Commonwealth’s application for security which Lloyd-Jones FM granted. 

11                  Cowdroy J found no basis for Mr Croker’s assertion that the Commonwealth had acted otherwise than in accordance with the standards expected of it as a model litigant under the Legal Services Directions 2005 made pursuant to s 55ZF of the Judiciary Act.  His Honour was mindful that the power to strike proceedings out or to dismiss them should only be used in exceptional cases where the facts disclosed a clear case of abuse.  He found that the current proceedings before him had been instituted solely for the purpose of circumventing the orders made by Lloyd-Jones FM in the proceedings before the Federal Magistrates Court.  His Honour concluded that (Croker [2008] FCA 452 at [59]):

“An applicant is not entitled to commence fresh proceedings because orders are made in earlier proceedings with which that applicant disagrees.  Such conduct obstructs the administration of justice and accordingly constitutes an abuse of process.”

12                  His Honour was also mindful of the frivolous nature of the claim and the fact that the Commonwealth had been put to expense out of all proportion to any damages that could be realistically awarded in Mr Croker’s favour:  Croker [2008] FCA 452 at [61].  Far from seeing any possible error or injustice in his Honour’s reasoning, it appears to me to be entirely apposite and correct.

Principles for Leave

13                  In seeking an extension of time in which leave to appeal might be granted, an applicant is required to give some explanation for the delay in filing the proceedings.  The orders of Cowdroy J were made on 8 April 2008.  Pursuant to O 52 r 10(2A)(b) an application for leave to appeal from an interlocutory judgment of the Court must be made on motion within seven days after the date on which the interlocutory order was made.

14                  An order striking proceedings out or dismissing proceedings on the basis that the proceedings are frivolous or vexatious or an abuse of the process of the court or do not disclose a reasonable cause of action is an interlocutory order:  Re Luck (2003) 203 ALR 1 at 3-4 [6]-[10] per McHugh ACJ, Gummow and Heydon JJ.  Accordingly, having regard to his Honour’s decision and his invoking of power under O 20 r 5, the proceedings were interlocutory.

15                  Mr Croker swore an affidavit on 28 April 2008 seeking to set out why leave should be granted.  He asserted that this was a Commonwealth consumer claim by a citizen of the Commonwealth alleging a series of contraventions of Commonwealth consumer law and uncalled for participation in formal proceedings to protest such unlawful contraventions.  He asserted the action was also under a law of the Commonwealth for wrongfully defending a claim for breach of warranty, false or misleading representations and misleading and deceptive conduct.  He asserted that the questions involved whether the Commonwealth had contravened its own consumer laws, the Legal Services Direction 2005, to which I have referred, and whether O 20 r 5(2) and in particular O 20 r 5(1)(b) authorising the Court to dismiss an application was a valid order or rule of the Federal Court of Australia.

16                  In my opinion those questions have no substance.  While it may be that Mr Croker originally had a claim that the pair of cuff links which he purchased was defective, that was able to be litigated in the proceedings before Lloyd-Jones FM.  Mr Croker chose neither to litigate them nor to comply with the Federal Magistrates Court’s orders.  There is no reason to doubt the correctness of Cowdroy J’s findings that Mr Croker had not shown any arguable basis on which the Commonwealth could be said to have contravened the Legal Services Direction 2005.

17                  The power of the Court to make a rule, such as O 20 r 5, is incontestable in any event.  The court has an implied or inherent power to protect its own processes from abuse and his Honour’s order could be equally supported by use of those powers, as Re Luck 203 ALR 1 shows.  Rules such as O 20 r 5 have been a part of the armoury of courts to protect themselves from vexatious and abusive claims for well over a century.  There is no basis on which it could be suggested that O 20 r 5 is not a valid rule of the Court.

18                  Mr Croker seemed to assert that the terms of O 20 r 5(2) did not relate to a finding under subr 1 of that rule.  I was unable to understand any rational basis for the argument.  The terms of the rule are plain.  Sub-rule 2 applies when the court is satisfied of either of the elements in subr 1 (i.e. O 20 r 5(1)(a) or (b)).  Cowdroy J was satisfied that the proceedings were an abuse of the process of the court under O 20 r 5(1)(b) and, therefore, had power to, and did, dismiss them under O 20 r 5(2).

19                  Mr Croker asserted that the reasons why he should be granted leave were that it would be in the interests of the administration of justice, Cowdroy J’s decision constituted a gross miscarriage of justice and it would be in the public interest.  None of these matters has the slightest substance. 

20                  Mr Croker’s explanation for his delay in filing his application for leave to appeal beyond the seven days permitted by O 52 r 10(2A)(b) appears in his affidavit in the following terms:

“10.     On the 10/4/2008 I was in attendance at the Federal Court of Australia registry at Queens Square, Sydney.  I requested to the counter officer to make inquiries to the Registrar in regards to the judgment of the Federal Court of Australia Croker v Commonwealth of Australia 8/4/2008.

11.       The counter officer failed to inquirer to the registrar and consulted the rules and made a decision himself.  In regards to the judgment and the practice and procedure inquire.” (sic)

21                  Apparently Mr Croker intended to assert, from what he has said at the bar table today, that the counter officer did not tell him that Cowdroy J had made an interlocutory decision and that, therefore, he had not filed his documents in time.  Having regard to Mr Croker’s litigious history I am far from satisfied with such an explanation.  But I am prepared to give him the benefit of the doubt that he misunderstood the obligation to file an application for leave to appeal within seven days.

22                  In such a case the principles upon which the Court proceeds are well settled.  An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer (1988) 195 CLR 516;  Jess v Scott (1986) 12 FCR 187:  see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7]-[8] per myself.  In essence the court seeks an outline of the merits of the case sought to be brought out of time.  If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended.  However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time.  The Court does not go into detail on the merits but likes to know something about it.  That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J.

23                  As Brennan CJ and McHugh J said in Jackamarra 195 CLR at 520 [4]:

“To grant the application for an extension of time is to put at risk a vested right of the respondent.”

Here the Commonwealth had a vested right, after the seven days had expired, protecting it from further vexatious litigation of the present kind being brought by Mr Croker.  These proceedings, as the history set out by Cowdroy J and in part recited above shows, have no legitimate forensic purpose.  They are simply an attempt to re-litigate a case which was properly before the Federal Magistrates Court with whose directions Mr Croker, without explanation, failed to comply and was unsuccessful in his application to appeal from those orders.

24                  Instead he sought to use the processes of this Court to circumvent Lloyd-Jones FM’s orders in a way which would only bring the administration of justice into disrepute among right-thinking people were it allowed to succeed.  In Walton v Gardiner (1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said:

“[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  The jurisdiction of a superior court at such a case was correctly described … as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’”  (footnotes omitted)

25                  They cited Lord Diplock’s famous remarks in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536;  see also Rivera v Minister Administering the Extradition Act 1988 (Cth) (2007) 164 FCR 116 at 119-120 [16]-[18] per myself and [23] per Flick J who agreed with my reasons on this point.

26                  For these reasons, I am of opinion that Mr Croker has failed to make out any reason upon which an extension of time ought to be granted.  I am satisfied that even if an extension of time were granted, leave to appeal would never have been granted because Cowdroy J’s decision is not attended with sufficient doubt to want the grant of leave, being in my opinion, undoubtedly correct.  Also, no injustice, let alone substantial injustice, would result from a refusal of a leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.  For these reasons the application for leave to appeal must be refused.

Costs

27                  The Commonwealth seeks an order that its costs be paid by Mr Croker on an indemnity basis.  I am satisfied for the reasons that I have given that these proceedings had no legitimate forensic purpose and were the plainest abuse of the process of the court.  Mr Croker failed to identify any error in Cowdroy J’s judgment which could have warranted a grant of leave being made.  As Cowdroy J found, the proceedings before him had been instituted solely for the purpose of circumventing the orders made in the Federal Magistrates Court. 

28                  The application for leave to appeal was without foundation and unsupported by any evidence of any injustice.  I am satisfied that the vexatiousness of the proceedings and their abusive nature warrants an order that Mr Croker pay the Commonwealth’s costs taxed on an indemnity basis.

Associate:

Dated:         27 June 2008