FEDERAL COURT OF AUSTRALIA

Soden v Croker [2015] FCA 321

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 3 March 2015 is dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

1    In the substantive proceedings, the applicant, the Registrar of the Federal Court, seeks a vexatious proceedings order under s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) prohibiting the respondent, Mr Croker, from instituting any proceedings in this Court without prior leave of the Court and staying or dismissing all proceedings in this Court. In support of that application, the applicant has foreshadowed that he intends to rely upon an exhibit comprised of judgments and orders from previous proceedings in various courts and tribunals, including the Federal Court, in which Mr Croker has been involved (the exhibit). In many of those proceedings, the Australian Government Solicitor (AGS) by his employed solicitors was the solicitor on the court record.

2    On 14 January 2015, Mr Croker requested that the Registrar obtain a copy of a Local Court file. That file relates to pending criminal charges laid against a former employee of the AGS who was the solicitor on the record in a number of the cases involving Mr Croker which are included in the exhibit.

3    On 11 February 2015, upon the file being produced to the Court, I refused an application by Mr Croker for access to the file. My reasons for refusing access (which were given at the time) were that the file included material of a personal nature and that the material contained in the file could have no bearing upon the matters which were the subject of these proceedings. As such they were of no relevance to the proceedings. Orders were not formally entered.

4    By an interlocutory application filed on 3 March 2015, Mr Croker seeks orders setting aside that interlocutory decision and that Registry supply him with a copy of the Local Court file. The application is supported by an affidavit affirmed by Mr Croker on 23 February 2015 and has been decided by me on the papers.

5    The applicant contends that the file is relevant because it would demonstrate that “the acts and omissions of the senior Australian Government Solicitor amounts to corrupt conduct and matters he was involved with should be void” and a breach of the APS Code of Conduct. The applicant also relied upon s 55 of the Evidence Act 1995 (Cth) (Evidence Act) defining evidence relevant in a proceedings as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

6    The grounds on which Mr Croker asks this Court to revisit the earlier decision therefore essentially repeat his submissions on 11 February 2015 which were rejected. As such, the interlocutory application is an attempt merely to re-litigate an issue already determined by the Court.

7    In any event, I remain of the view that the material sought by Mr Croker can have no rational bearing on the question before the Court on the substantive application, namely, whether he has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” so as to warrant the making of a vexatious proceedings order in the exercise of the Court’s discretion: ss 37AO(1)(a) and (2)(a) and (b), Federal Court Act. Recitation of the definition of relevance in the Evidence Act only reinforces that conclusion highlighting the need for a rational connection.

8    Accordingly, the interlocutory application filed on 3 March 2015 is dismissed. As the respondent does not seek his costs, no order is made as to costs.

Associate:

Dated:    7 April 2015