FEDERAL COURT OF AUSTRALIA

Croker v Segal [2014] FCA 944

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) the proceedings be dismissed.

THE COURT NOTES THAT:

2.    The respondent does not seek any order for costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    On 25 November 2013, the Full Court dismissed an appeal by Clayton Croker (Croker v Minister for Finance [2013] FCAFC 154, per Rares, Jagot and Wigney JJ) against the decision of Cowdroy J dismissing his application for an order compelling the Minister to make a decision to pay him compensation pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth), known as an act of grace payment: Croker v Minister for the Department of Finance and Deregulation [2013] FCA 429.

Background

2    In those proceedings, Cowdroy J had found that he was not satisfied that Mr Croker had proved that he had delivered a letter dated 21 October 2011 to the Minister’s Department seeking an act of grace payment, the non-response to which was the subject matter of his claim for mandamus to compel the Minister to deal with it. The Full Court held that his argument on appeal had no coherence, that it and the proceedings before Cowdroy J were an abuse of the process of the Court and that when he began the proceedings he was aware that the Department had no record of any person named David Hill, as one of its employees, he being the person to whom Mr Croker claimed he had hand-delivered the unproduced letter upon which his proceedings relied.

3    The Full Court held that Mr Croker had chosen a completely unreasonable and inappropriate means of pursuing his claim and had caused the Court to be involved in both an action and appeal that were foredoomed to fail. It held that the proceedings were clearly frivolous and vexatious, and recommended that it was time for the Registrar to take proceedings to have him made a vexatious litigant as he had already been made by the Supreme Court of New South Wales.

4    Undeterred by what had occurred to that point, on 23 December 2013, Mr Croker next sought to file an application for special leave to appeal in the High Court of Australia. An attentive member of the High Court registry observed that, as an undischarged bankrupt, Mr Croker was not entitled to bring any application without the consent of his trustee. That was because of the vesting in the trustee of his after-acquired property pursuant to s 58(1) of the Bankruptcy Act 1966 (Cth). Later that day, Mr Croker approached the Australian Financial Security Authority, which was his trustee in bankruptcy.

5    On 12 February 2014, the Authority wrote a detailed letter to Mr Croker explaining that the matter that he had sought to litigate in this Court and for which he was seeking special leave was not an action that could be characterised as one for personal injury or wrong done to a bankrupt within the meaning of the exception in s 116(2)(g) of the Bankruptcy Act, namely a right of the bankrupt to recover damages or compensation for personal injury or wrong relevantly done to him. Accordingly, the Authority advised him that the right to bring or continue any application for special leave to appeal in the previous matter was vested in the trustee, and the trustee was not inclined to intervene. The letter explained that one of the factors that a trustee-in-bankruptcy had to consider was its public duty as such a trustee, as well as the public welfare. The Authority pointed out that the Full Court had dismissed the appeal, concluding that the proceedings were an abuse of process. The letter referred to the comments of the Full Court about Mr Croker’s unreasonable and inappropriate behaviour in pursuing the claim and that it had been foredoomed to fail. It then continued:

“It remains totally unclear to us how you say that there are any reasonable grounds on which the Official Trustee should continue these proceedings by making or supporting the making of an application for special leave.”

6    The letter referred to deficiencies in his purported application that had been discussed between the senior case manager within the Authority and Mr Croker in emails that are not before me. It advised Mr Croker that he had a right under s 178 of the Bankruptcy Act to appeal the trustee’s decision to the Court.

7    Mr Croker initially sought to do so by filing documentation with the Court that Deputy District Registrar Ng rejected on 3 April 2014. Deputy Registrar Ng wrote to Mr Croker that the proposed originating application had not identified any law of the Commonwealth or other provision that he was relying upon to enliven the Court’s jurisdiction and that he needed to identify what was the matter for which he was seeking special leave to appeal to the High Court. That letter said that, if Mr Croker wished to press his application, he needed to arrange for the required information to be furnished in a new application that he should return to the registry and enclosed Mr Croker’s rejected documents.

8    Mr Croker argued that that letter indicated that, if he attended to the defects, he was somehow entitled to file the present proposed application. However, the respondent, Deputy District Registrar Segal, rejected the new proposed application on 11 April 2014 under r 2.26 of the Federal Court Rules 2011 (Cth). On Deputy Registrar Segal’s view, that application could not possibly succeed and, therefore, the documents that Mr Croker wished to file were an abuse of the process of the Court and frivolous and vexatious.

The present application

9    In his originating application filed on 2 May 2014, Mr Croker seeks an order that the decision of 11 April 2014 be set aside. The details of his claim were that the Registrar’s decision denied his “Constructional” rights of due process (although I think that must mean constitutional rights of due process), was contrary to s 178 of the Bankruptcy Act because it was a gross miscarriage of justice on him and was “inconsistent and repugnant to natural law, rule of law and natural justice”. Mr Croker’s affidavit in support of the originating application suggested the Court had jurisdiction under s 178, as it plainly does, and referred to the decisions of both Registrars.

10    The documents rejected by Registrar Segal consisted of an originating application, dated 11 April 2014, that outlined the details of that claim pursuant to s 178 of the Bankruptcy Act, as stated in an affidavit by Mr Croker. It sought that the decision of the Authority of 12 February 2014 be set aside, together with an order for costs. The affidavit in support appears to be dated 2 April 2014, in which Mr Croker identified himself as the applicant, referred to the jurisdiction of the Court under s 178, and the history of his proceedings against various parties, seeking compensation for the purchase of two pairs of cufflinks that he purchased from the High Court of Australia. The cufflinks had been produced for the High Court’s centenary but became tarnished over time.

11    Mr Croker’s affidavit referred to the decision of the Full Court of 25 November 2013 and Mr Croker’s unsuccessful attempt to have his application for special leave to appeal filed in the High Court Registry on 23 December 2013. It then went on to discuss his case about the tarnished cufflinks and his having being made bankrupt. He claimed that the Full Court had failed to go behind the judgment debt in bankruptcy. That matter was not raised in the Full Court and had nothing to do with the proceedings before it seeking an act of grace payment from the Minister for Finance under the Financial Management and Accountability Act. Mr Croker then identified in the affidavit what he said were examples of his previous successful litigation. He described the claim he had made for a writ of mandamus in the proceedings in which he was seeking special leave, saying that his applications before Cowdroy J and the Full Court had “failed to bear fruit” and said that the application had proceeded to the High Court, but required the trustee’s consent. He explained that the High Court had rejected his documents on 23 December 2013 on the ground that his bankruptcy trustee had not agreed to support their filing. Mr Croker said that, on the same day, he went to the trustee’s office and was told that he would need to wait for the trustee to consider matters. He also said in his rejected affidavit that the officer of the Authority with whom he was dealing told him that the Authority would only commence an action if the proceedings would be beneficial with respect to the costs and the amount recoverable and attached a copy of the Authority’s letter dated 12 February 2014 containing its refusal to proceed.

12    Mr Croker mentioned in his affidavit that an officer of the Authority had asked him whether or not he had filed a statement of affairs in his bankruptcy. He had said that he had not and that:

“I have read if I don’t the bankruptcy would continue and as it did it would protected my from further cost orders.” [sic]

As I pointed out to Mr Croker, he seems to have been under some misapprehension that he had somehow not been obliged to comply with s 54(1) of the Bankruptcy Act. That provision required him to file a statement of affairs within 14 days from the day on which he was notified of his bankruptcy.

Mr Croker’s submissions

13    Mr Croker’s written submissions on the present application and his oral submissions raised a contention that Registrar Segal’s decision somehow was beyond power, because it “overruled” Registrar Ng’s decision to allow him to file the documents.

14    That argument is without any substance. Registrar Ng did not allow him to file any documents. His decision was to return the documents, because they did not disclose any cognisable cause of action that could be litigated in the Court.

15    Secondly, Mr Croker argued that the trustee’s decision was unreasonable, because the Authority had allowed him to bring a large number of previous cases without exercising its right to deal with those matters itself, as forming part of Mr Croker’s after-acquired property under s 58(1) of the Bankruptcy Act.

Consideration

16    I can only say it is regrettable that the trustee was not made aware of Mr Croker’s attempt to bring the litigation, the subject of the proceedings that were heard by Cowdroy J and the Full Court. Had the trustee done so, that litigation would no doubt not have proceeded. Mr Croker was entirely unable to articulate any ground on which he could have persuaded the High Court to grant special leave to appeal under s 35A of the Judiciary Act 1903 (Cth). I pointed out to him that he had not even placed the documents that he sought to file in the High Court before me so that I could consider whether there was any merit in his application for special leave to appeal.

17    Essentially, the case before Cowdroy J and the Full Court involved a simple question of fact, namely whether Mr Croker had ever delivered the letter to the Department seeking the act of grace payment for which he claimed he had a right to obtain a writ of mandamus requiring the Minister to consider it. Cowdroy J found he was not satisfied that Mr Croker had, in fact, ever delivered the letter to the Department so as to engage any obligation of the Minister to consider it. The Full Court upheld that simple finding of fact and concluded that Cowdroy J correctly found that Mr Croker had failed to prove his case. Moreover, as the Full Court found, Mr Croker’s pursuit of the proceedings was a completely unreasonable and inappropriate means of proceeding and they were an abuse of the process of the Court.

18    In the present circumstances, I am satisfied that the proposed application for special leave to appeal was a perpetuation of that abuse of process. As the Authority’s letter to Mr Croker of 12 February 2014 pointed out, in Adsett v Berlouis (1992) 37 FCR 201 at 208, Northrop, Wilcox and Cooper JJ said that a trustee in bankruptcy has a dual function, first, to administer the estate in the interests of the creditors and the bankrupt and, secondly, to exercise, as a public duty and for the public welfare, certain powers given and duties imposed under the Act.

19    In my opinion, those duties include the control of the bankrupt’s after-acquired property that vests in the trustee under s 58 of the Act and the prevention of the frivolous wasting of the bankrupt’s estate on litigation that could not possibly succeed. There is no basis to think that anything in Mr Croker’s undisclosed papers he wished to file in the High Court demonstrated that his proceedings involved a question of law that was of general public importance, whether because of its general application or otherwise, or in respect of which the decision of the High Court was required to resolve differences of opinion between other courts or as to the state of the law, or that it was in the interests of the administration of justice either generally or in his case to require that the High Court consider the judgment of the Full Court as s 35A of the Judiciary Act required. Mr Croker has not demonstrated that he had anything to put to the High Court that transformed his proposed application for special leave from a continuation of the abuse of process that the Full Court had found his proceedings to be.

20    The present application is a further transparent abuse of the process of the Court. While the Court does have jurisdiction to engage in judicial review of a decision of a Registrar acting pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) and r 2.26 to refuse to accept a document for filing, on the ground that Registrar Segal did in this case, some basis of error on the part of the Registrar in the exercise of his or her discretion must be shown: Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 at 230 [49] per Marshall, Cowdroy and Buchanan JJ.

21    Mr Croker has been unable to demonstrate that he has any ground of judicial review, such as jurisdictional error, that could conceivably found his right to obtain the issue of a constitutional writ or an order pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). He has put nothing remotely arguable to challenge the Registrar’s decision. On the material before the Registrar, the only possible conclusion that he could have formed was that Mr Croker’s application was frivolous and vexatious and an abuse of the process of the Court, as it transparently was.

22    This application has been waste of the Court’s time and resources. It should never have been instituted and it is high time that the Authority, as Mr Croker’s trustee, squarely took control of his behaviour in bringing such frivolous litigation. These proceedings were foredoomed to fail and had no prospect of success: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.

23    In my opinion, these proceedings must be dismissed summarily under s 31A of the Federal Court of Australia Act as an abuse of the process of the Court.

Associate:

Dated:    2 September 2014