FEDERAL COURT OF AUSTRALIA

Soden v Croker (No 2) [2016] FCA 15

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), the respondent is prohibited from instituting any proceedings in the Federal Court of Australia without the prior leave of the Court.

2.    Costs are reserved.

3.    The applicant has leave to file and serve any affidavit evidence and submissions on which he relies in relation to the issue of costs on or before 4.00pm on 10 February 2016.

4.    The respondent has leave to file and serve any affidavit evidence and submissions on which he relies in relation to the issue of costs on or before 4.00pm on 24 February 2016.

5.    The applicant has leave to file and serve any affidavit evidence or submissions in reply in relation to the issue of costs on or before 4.00pm on 3 March 2016.

6.    Subject to the parties communicating any objection filed as correspondence and served on or before 4.00pm on 4 March 2016, the issue of costs will be determined on the papers.

7.    The submissions referred to in orders 3 and 4 are not to exceed 5 pages in length, including any annexures, while the submissions in reply under order 5 are not to exceed 3 pages in length. All submissions are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

THE COURT NOTES THAT:

8.    On or before 4.00pm on 10 February 2016 the Registrar is to advise the Court and Mr Croker in writing as to whether or not he wishes to seek an order in terms of order 3 of the amended originating application.

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

REASONS FOR JUDGMENT

PERRY J:

1.    Introduction

1    The applicant seeks orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) precluding Mr Clayton Robert Croker from instituting proceedings in this Court without prior leave of the Court, and staying or dismissing all pending proceedings before the Court. The application is based upon evidence of a very substantial number of proceedings instituted or conducted by Mr Croker from 1997 to date which are said to be vexatious for the purposes of s 37AO, including interlocutory proceedings, appeals and applications for leave or special leave to appeal.

2    The Registrar has standing to bring this application under s 37AO(3)(b) of the FCA Act.

3    Mr Croker resists the making of the orders and filed written submissions in advance of the hearing in response to those filed by the Registrar. At the hearing of the application, Mr Croker simply adopted his written submissions without further elaboration.

4    For the reasons given below, I consider that the case for making a vexatious proceedings order requiring a grant of leave before proceedings are instituted is overwhelming. Notwithstanding that no proceedings were identified as pending in the Federal Court, I will allow the Registrar the opportunity to inform the Court as to whether orders staying any current proceedings are still pressed, given the time which has elapsed since judgment was reserved.

2.    The evidence

5    In support of the application for a vexatious proceedings order, the Registrar relied upon evidence of orders, judgments and related documents made in 103 proceedings involving Mr Croker as a party over a 17-year period. The most recent decision relied upon was that of Perram J in Croker v Segal [2014] FCA 1044 determined on 25 September 2014. Reliance was also placed in oral submissions on my interlocutory decision given on 7 April 2015 in Soden v Croker [2015] FCA 321. This evidence constituted as complete a record of Mr Croker’s litigation history as the Registrar’s inquiries and research were able to uncover, and included litigation which was not vexatious, or was not relied upon as vexatious. The task of navigating through the evidence of numerous proceedings said to be vexatious, together with the 33 additional proceedings involving Mr Croker not relied upon as vexatious, was assisted by the detailed index and summary of the different sets of proceedings prepared by the Registrar to accompany that evidence. That document was served on Mr Croker in February 2015. The additional 33 proceedings were identified by an asterix in the index and summary, and in a separate list.

6    Mr Croker did not challenge the Registrar’s evidence but relied upon an affidavit affirmed by him on 30 March 2015. While his affidavit was read without objection, the affidavit is plainly inadmissible. It is comprised first of submissions under the heading “Facts” alleging that to apply s 37AO(2)(b) of the FCA Act “would in affect circumvent numerous judgments of the superior courts of record. As the majority of judgments do not state that there has been any suggestion of vexation.” I have had regard to this only as a submission. Secondly, in his affidavit, Mr Croker submits that the Registrar has failed to state which cases are relied upon in accordance with Court orders. Those cases relied upon, however, are identified in the documents filed by the Registrar as I have explained. Thirdly, a number of assertions are made by Mr Croker in his affidavit that the cases relied upon include cases of alleged corrupt conduct, referring to Croker v Minister for Finance and Deregulation [2013] FCA 429 and Croker v Minister for Finance [2013] FCAFC 154. In this regard, Mr Croker makes an unsubstantiated allegation against the Minister for Finance in relation to those matters and relies upon criminal proceedings against a legal practitioner that are irrelevant to this application. As such, I do not give these statements any weight insofar as they are relied upon as evidence of the truth of that which they assert. However, these statements are relevant to a consideration of the risk that Mr Croker might engage in vexatious proceedings in the future which is a matter relevant to the exercise of my discretion in determining whether to make the orders sought, as explained below.

3.    The legislative scheme

3.1    General principles

7    Access to the courts to seek remedies as a consequence of an alleged infringement of a person’s rights is a fundamental right under the Australian legal system: Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 (Kowalski (FCAFC)) at 162 [58] (the Court). Nonetheless, that principle is not absolute. Provisions such as those contained in Part VAAA of the FCA Act for the making of vexatious proceedings orders are underpinned by a countervailing policy to protect “the court’s own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance”: Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at 389 [52] (Sackville J); see also Kowalski (FCAFC) at 162-163 [59] (the Court). “Linked with that objective”, as Sackville J also pointed out, “is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings” (ibid). The seriousness of any interference with a person’s capacity to access the courts means, however, that such orders are not lightly made: Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2007] FCA 1069; (2007) 242 ALR 370 at 380 [44] (Finn J). As the Full Court held in Kowalski (FCAFC) at 162 [58], the remedy is an extreme one.

8    Part VAAA of the FCA Act was inserted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (the Amending Act) with effect from 11 June 2013: see further Ferdinands v Chief of Army [2013] FCAFC 103 at [10] (Allsop CJ (with whom the other members of the Court agreed)). The Amending Act established an essentially consistent scheme for all four federal courts. In so doing, the Amending Act gives effect to a model law developed by the Standing Committee of Attorneys-General on vexatious proceedings which has also been implemented to date in other jurisdictions including Queensland and New South Wales in substantially the same terms.

9    A vexatious proceedings order may include “an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court” and any other order that the Court considers appropriate in relation to the person: s 37AO(2), FCA Act. Importantly, such orders are made to shield other litigants from harassment and to protect the Court from the expense, burden and inconvenience of baseless and repetitious suits, but not to impose punishment for litigious misconduct: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (Teoh (No 8)) at [56] (the Court); Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan (No 2)) at [3] (Perram J), cited with approval in Attorney-General (NSW) v Gargan [2010] NSWSC 1192 (Gargan) at [8] (Davies J).

10    A “vexatious proceedings order” may be made under s 37AO(1) of the FCA Act if the Court is satisfied that:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

3.2    What is a “vexatious proceeding”?

11    Section 37AM(1) of the FCA Act defines “vexatious proceeding” to include:

(a)        a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

12    These categories substantially overlap, as Adamson J pointed out in Attorney-General (NSW) v Chan [2011] NSWSC 1315 (Chan) at [33] with respect to the equivalent provision in the Vexatious Proceedings Act 2008 (NSW) (the NSW Act).

13    As to s 37AM(1), it has recently been said that “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues”: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Nonetheless, certain categories of abuse of process are well settled. As McHugh J observed in Rogers v The Queen (1994) 181 CLR 251 (Rogers) at 286 (in dissent but not on the issue of principle):

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

14    As his Honour then observed, any procedural step taken in the course of proceedings is capable of being an abuse of the court’s process: ibid.

15    To similar effect, Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 that:

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are “frivolous, vexatious or oppressive”. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.

16    I note that Basten JA in Viavattene v Attorney-General (NSW) [2015] NSWCA 44 (Viavattene) at [19] raised a question as to whether ss 6(b) and 6(d) of the NSW Act, which are equivalent to ss 37AM(1)(b) and 37AM(1)(d) of Part VAAA of the FCA Act, require a subjective element of improper purpose and queried whether an objectively demonstrated outcome without that further element would suffice. In her separate reasons at [3]-[4], Beazley P did not consider that this was necessarily the correct construction of s 6(d) and pointed to two decisions where para (d) had been construed as not requiring the Court to determine whether the defendant in proceedings under the NSW Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”, namely, Pascoe v Liprini [2011] NSWSC 1484 at [10] (Adamson J) and Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] (Slattery J). In any event, her Honour considered at [4] that:

…if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to “achieve another wrongful purpose” requires an intentional element.

17    However the construction of s 6(d) was not raised on the appeal and neither Beazley P nor Basten JA therefore considered that this was an appropriate occasion on which to determine the question: Viavattene at [5] (Beazley P) and [20] (Basten JA). Nor is it necessary for me to determine it here as, for the reasons developed below, on any view Mr Croker has instituted and conducted proceedings which constitute an abuse of process and are therefore caught by s 37AM(1)(a) of the FCA Act. A classic example is Mr Croker’s attempts to relitigate issues already determined in earlier proceedings.

18    Turning then to what constitutes a “proceeding”, the term is defined in s 4 of the FCA Act to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. This means, as Adamson J pointed out in Chan at [34], [67] and [70], that the Court may have regard to baseless applications or appeals or repeated oral applications with no proper basis. It follows, that an application for an extension of time within which to appeal or seek leave to appeal, being for example incidental proceedings in connexion with a proceeding, would constitute a “proceeding”, as would, for example, an application for the issue of a subpoena.

19    Furthermore, the word “institute” as defined in s 37AM(1)(a) includes “for civil proceedings – the taking of a step or the making of an application that may be necessary before proceedings can be started against a party”. A request for a bankruptcy notice to be issued by the Official Receiver is an example of the taking of a step necessary before proceedings in a court may be started against the debtor by way of a creditor’s petition, as I held in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [103]. A further example of such a step is Mr Croker’s request, as an undischarged bankrupt, for the consent of the Trustee in Bankruptcy to file the application for special leave to appeal to the High Court in the ex gratia payments proceedings: see at [200] below. Furthermore, as the Registrar submits, the reference in s 37AO(1) to conducting proceedings permits the Court to have regard to the way in which proceedings are carried on after they have been instituted irrespective of whether or not they were regularly and appropriately commenced.

20    Finally, in determining whether the criteria in s 37AO(1) are satisfied, I am not limited to considering the decisions of the Federal Court but may have regard under s 37AO(6) to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

21    In this regard, as Adamson J said in Chan at [39]:

While the Court needs to form its own view about each piece of litigation relied on… the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: [Attorney-General (NSW) v] Wilson [[2010] NSWSC 1008] at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7].

22    As such, it is appropriate among other things for me to have regard to the decision in Attorney-General (NSW) v Croker [2010] NSWSC 942 (Croker (NSWSC)) in which Fullerton J determined that it was appropriate to make a vexatious proceedings order pursuant to s 8(7)(b) of the NSW Act against Mr Croker. That order prevented Mr Croker from instituting proceedings in New South Wales other than by leave of an appropriate court under the NSW Act. An application for leave to appeal from that decision was dismissed with costs by the Court of Appeal on the grounds that nothing raised by Mr Croker cast any doubt on the decision and there was no basis for considering that there is any prospect of success in the appeal: Croker v Attorney-General (NSW) [2010] NSWCA 355 (Allsop ACJ (as his Honour then was) and McColl JA).

3.3    “frequently”

23    The power in s 37AO(1)(a) is enlivened only if it can be said that Mr Croker instituted or conducted vexatious proceedings “frequently”. As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 (Wilson) at [11]:

It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law – see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported – Supreme Court NSW, Holland J – 29 March 1978).

24    Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rr 21.1 and 21.2 of the Federal Court Rules 1979 (Cth) (the Federal Court Rules) which required that vexatious proceedings have been conducted “habitually and persistently”, and did so deliberately: Potier v Attorney-General (NSW) [2015] NSWCA 129; (2015) 89 NSWLR 284 (Potier) at 310-311 [114]-[115] (Leeming JA). The previous test had been said to imply “more than great frequency”, the word “‘[h]abitually’ suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 (Roden J); see also Kowalski (FCAFC) at 163 [65] (the Court).

25    The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Gargan at [7] (Davies J); see also Wilson at [12] (Davies J); Jones v Cusack (1992) 109 ALR 313 at 315 (Toohey J); and Chan at [37] (Adamson J). Thus, the Court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue already determined against the person: Fuller v Toms [2013] FCA 1422 at [77] (Barker J). Similarly, in explaining the previous requirement that vexatious proceedings be instituted “persistently”, the Full Court in Kowalski (FCAFC) at 164 [67] approved the statement of the New Zealand Court of Appeal in Brogden v Attorney-General (NZ) [2001] NZAR 809 at [21] that:

What constitutes institution of such proceedings “persistently” will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication.

26    In short, as Leeming JA recently explained in Potier at 311 [116], “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.”

4.    Analysis of Mr Croker’s prior litigation

4.1    Introduction

27    It is necessary to analyse the history of litigation by Mr Croker in the period 1997 to date in order to consider whether the proceedings on which the Registrar relies as vexatious are properly characterised as such and whether vexatious proceedings were frequently instituted or conducted. This analysis is also relevant to the exercise of discretion in which, as I later explain, the extent of proceedings not characterised as vexatious should also be taken into account.

28    In preparing this analysis, I have derived assistance from the careful and comprehensive analysis of Mr Croker’s litigation history in the period 1997-2010 prepared by Fullerton J in Croker (NSWSC). This formed the basis of her Honour’s conclusion that a vexatious proceedings order should be made so as to preclude Mr Croker from litigating in New South Wales courts without leave. Further, a substantial part of the evidence of prior litigation before me was taken from the bundle of evidence before her Honour and that evidence has been sorted substantially into the same groupings. However, none of this relieves me of the obligation to consider the evidence for myself and ultimately to reach my own conclusion.

29    The Registrar’s evidence demonstrates a “sprawling history of litigation” by Mr Croker, as counsel for the Registrar described it, across state and federal courts and tribunals, involving many and different parties and subject matter. It may conveniently be grouped into the broad categories adopted by the Registrar in chronological order by reference to date of commencement as follows:

(1)    HREOC proceedings (November 1997-February 1998): appeal against a decision of the Human Rights and Equal Opportunity Commission dismissed due to lack of jurisdiction;

(2)    Victims Compensation proceedings (August 1998-November 2001);

(3)    Detinue proceedings (October 1998-August 2000);

(4)    Tenancy proceedings (November 1998-April 2009): dispute arising from Mr Croker’s eviction from certain premises and leading to related proceedings in relation to, among other matters, subpoenas issued to the Commissioner of Police and Commissioner of Taxation, bankruptcy applications arising from costs orders against Mr Croker, defamation proceedings against the Commissioner of Taxation by Mr Croker by reason of the bankruptcy proceedings having been published, and a claim for damages against the Commissioner of Taxation arising out of the Commissioner’s attempts to bankrupt Mr Croker;

(5)    Dental proceedings (December 1998-August 2005): claim against a dentist for damages alleging misconduct in repairing fillings, and related proceedings including in relation to orders as to an application in the High Court, the costs of the photocopying of documents produced by the High Court and an application for security for costs;

(6)    Credit proceedings (July 1999-February 2001): proceedings against the Commonwealth Bank alleging, among other things, harsh and oppressive conduct, undue influence, and false and misleading conduct;

(7)    Social Security proceedings (August 1999-January 2009): series of challenges to various decisions in relation to social security payments including the Disability Support Pension, a requested advance on a pension, and for the Pensioner Education Supplement payment to be backdated;

(8)    Mobile phone proceedings (March 2000-September 2005): claim in relation to dissatisfaction with two mobile phones;

(9)    Jewellery proceedings (March 2002-June 2003): claim in relation to a damaged ring valued at $400;

(10)    Discrimination proceedings (February 2003-September 2009): disability discrimination claim against Sydney Institute of TAFE and University of Technology, Sydney;

(11)    Miscellaneous Consumer, Trader and Tenancy Tribunal (CTTT) proceedings (July 2004-October 2004): claims in the CTTT in relation to initials engraved on pen and overcoat;

(12)    Cufflink proceedings (July 2004-June 2011): claim against the High Court arising from the purchase of commemorative cufflinks from the High Court alleged to have tarnished;

(13)    Credit Card proceedings (March 2005-August 2005): claim in relation to fee for difficulties with EFTPOS facilities at a supermarket;

(14)    Ex Gratia Payments proceedings (May 2013-September 2014).

30    Litigation within some of these categories has been further subdivided, such as in the case of the Tenancy proceedings, where the substantive proceedings “spin off”, as counsel for the Registrar described it, into a series of related proceedings such as those involving the recipients of subpoenas issued by Mr Croker.

4.2    The HREOC proceedings (November 1997-February 1998)

31    In November 1997 the defendant commenced proceedings in the Administrative Appeals Tribunal (AAT) for review of the decision of the President of the Human Rights and Equal Opportunity Commission (HREOC) not to inquire into his complaint of disability discrimination under the Disability Discrimination Act 1992 (Cth). The application for review was dismissed by Senior Member Hallowes on 18 February 1998 on the ground that the AAT lacked jurisdiction to review the decision: Croker v Human Rights and Equal Opportunity Commission [1998] AATA 160.

4.3    The Victims Compensation proceedings (August 1998-November 2001)

4.3.1    The first Victims Compensation proceedings (not relied upon as vexatious)

32    On 14 August 1998, a Victims Compensation Assessor refused Mr Croker’s application for compensation for alleged psychological injuries received as part of an assault and theft that occurred in March 1997 on the ground that the compensable psychological injury had not been established. Mr Croker appealed that decision to the Victims Compensation Tribunal. The Tribunal dismissed the appeal on 10 February 1999 given “the absence of any medical evidence that the applicant has suffered a psychiatric or psychological disorder”: Appeal of Clayton Robert Croker – Victims Compensation Tribunal Application No. 33909.

33    Mr Croker sought leave to appeal against the Tribunal’s decision in the District Court of New South Wales (the District Court). While leave to appeal was granted, Garling DCJ dismissed the appeal on the grounds that Mr Croker’s condition did not fall into the category of an injury pursuant to the Victims Compensation Act 1996 (NSW) (Croker v Victims Compensation Fund Corporation [1999] NSWDC 7).

34    Mr Croker instituted an appeal against the District Court decision in the Supreme Court of New South Wales (the Supreme Court) seeking $150,000 in damages. Those proceedings were dismissed by Registrar Irwin on 14 August 2000 with no order as to costs. No part of the first set of victims compensation proceedings are characterised by the applicant as vexatious.

4.3.2    The second Victims Compensation proceedings

35    On 7 September 2000, a Victims Compensation Assessor refused Mr Croker’s application for compensation based on an alleged assault in and outside a hotel in Surry Hills. Police had attended the scene but Austrian tourists present gave a different account and the police could not find any person to corroborate Mr Croker’s version of events. As Mr Croker’s version of the incident was not able to be corroborated, the assessor determined that it was not possible to establish an act of violence on the balance of probabilities and the application was dismissed. This application and decision is not characterised by the applicant as a vexatious proceeding.

36    Mr Croker appealed the Assessor’s decision to the Victims Compensation Tribunal on grounds that included that the determination was a breach of the Justices Act 1902 (NSW) and Police Service Act 1990 (NSW). A psychologist’s report in evidence before the Tribunal stated that “Mr. Croker appears confused when describing the numerous assaults he has been subjected to. These inconsistencies raise queries as to the validity of his claims”. On 6 March 2001 the Tribunal dismissed the appeal, finding that there was no medical evidence establishing that Mr Croker had sustained a compensable injury: Victims Compensation Tribunal Application no. 62998.

37    Mr Croker then instituted proceedings in the District Court seeking to have the determination remitted back to the Victims Compensation Fund Corporation for redetermination with additional evidence. Boyd-Boland ADCJ dismissed the appeal with costs, finding that there was no evidence beyond that available before the Tribunal which would have any bearing on the matter and the evidence supported the Tribunal’s decision: Croker v Victims Compensation Fund Corporation – District Court matter no. 3890/01. Boyd-Boland ADCJ also noted that Mr Croker’s ground of appeal that the determination “aggrieved” Mr Croker was not a basis for success in the motion.

38    On 2 November 2001, Mr Croker filed a summons for leave to appeal to the Court of Appeal from the District Court’s decision. On 4 February 2002, Registrar Irwin dismissed the summons as incompetent on the motion of the Victims Compensation Fund Corporation and ordered that Mr Croker pay the costs of the respondent’s motion (Court of Appeal matter no. 40588/01).

4.4    The Detinue proceedings (October 1998-August 2000)

39    By statement of claim dated 26 October 1998, Mr Croker instituted proceedings in the Local Court in detinue for $40,797 against Mr Ewen (Croker v Ewen - matter no. 12532/98): see also the related Tenancy proceedings at Part 4.5 below. On 15 June 1999, Mr Ewen commenced separate proceedings by way of filing an application to dispose of Mr Croker’s uncollected goods in the Local Court. On 20 July 1999, Chief Magistrate Landa ordered that Mr Croker attend the premises of Mr Ewen on 30 July 1999 to collect the goods and awarded costs against Mr Croker (Ewen v Croker - matter no. 20206524/99/2).

40    On 30 July 1999, Mr Croker filed a summons in the Supreme Court seeking an order that: (1) both Local Court proceedings be removed from the Local Court to the Supreme Court; (2) Mr Ewen pay the sum of $100,000; (3) the order of the Local Court be set aside until Mr Croker was able to accommodate the chattels without fear of loss or damage; and (4) damages (Croker v Ewen – matter no. 11846/99). Pursuant to a notice of motion filed by Mr Ewen on 13 September 1999, Dowd J dismissed Mr Croker’s summons with costs. On 24 September 1999, Mr Croker sought to appeal that decision.

41    On 20 July 2000, Giles JA heard an application by Mr Croker to set aside a direction by the Registrar that Mr Croker provide an address for service which complies with the Supreme Court Rules 1970 (NSW) (Supreme Court Rules), to replace Mr Croker’s address for service, which at the time was the address for the Darlinghurst Post Office. An application in substantially the same terms and heard on the same day was made in the Dental proceedings (see below at [70]). Giles JA held that a post office was not an address for service which complied with the Supreme Court Rules, and ordered that Mr Croker’s notice of motion be dismissed with costs (Croker v Ewen; Croker v Challoner [2000] NSWCA 186 at [5] and [10]).

42    On 18 July 2000, Mr Ewen filed a notice of motion seeking to have the proceedings declared incompetent and that the appellant be declared a vexatious litigant. The following month, the appeal was dismissed as incompetent and orders were made that no further documents be accepted for filing until Mr Croker provided a proper address for service, or until the decision of Giles JA was overturned.

4.5    The Tenancy proceedings (November 1998-April 2009)

4.5.1    The proceedings in the Residential Tenancies Tribunal (not relied upon in support of the vexatious proceedings order otherwise than as background)

43    By an application in the Residential Tenancies Tribunal (RTT) dated 20 November 1998, Mr Croker sought orders that the landlord present terms of agreement and a premises condition report in order to stop an “unlawful eviction”: RTT matter no. 98/36532. On 4 December 1998, the RTT dismissed the application because it was not satisfied that the grounds required to make the orders sought had been established. It found that the premises concerned operated as a boarding house (the Boarding House premises) and that the RTT had no jurisdiction in those circumstances to make the orders sought. Mr Croker applied to the RTT to vary or set aside the order on 17 December 1998 on the grounds that he was “aggrieved by the decision and supporting documentation was not produced at the hearing”. Deputy Registrar Haertsch dismissed that application on 18 December 1998 on the ground that s 110 of the Residential Tenancies Act 1987 (NSW) (RT Act) did not provide for merits review of the original decision: RTT matter no. 98/39116. The reasons, however, noted that appeals against a Tribunal decision on a matter of law are heard by the Supreme Court, referring to s 107 of the RT Act. The applicant does not rely upon these initial proceedings in the RTT as vexatious proceedings but only as background to subsequent proceedings which are relied upon.

4.5.2    Subsequent proceedings arising from the RTT proceedings

44    By summons filed in the Supreme Court on 11 January 1999, Mr Croker brought proceedings against his former landlord and the RTT for orders that his personal property in detention be returned, that the RTT orders be set aside, for the sum of $100,000 and for further unspecified damages. Barr J dismissed the summons on 14 July 1999 with costs holding that the Supreme Court had no jurisdiction to enquire into the process by which the RTT accepted the evidence that the premises were a boarding house, any appeal being only on a question of law, and the conclusion that the Tribunal lacked jurisdiction was therefore inevitable; nor was the Court satisfied that Mr Croker had suffered any damage: Croker v Perks & Anor [1999] NSWSC 752, especially at [31]-[40].

45    Mr Croker filed a notice of appeal without appointment on 21 July 1999, and with appointment on 15 October 1999, seeking a return of the goods “in detention of the appellant to the appellant”, that “[t]he appellant pay the sum of $150,000 in damages” and that the respondent pay the costs of “the several appeals”. On 8 November 1999, the Registrar wrote to Mr Croker advising that the appeal may not be valid and that leave may be required to appeal as the matter may not involve an amount in issue of at least $100,000. In April 2000 the Court of Appeal struck out the appeal as incompetent on the respondent’s motion, with each party to pay their own costs (Court of Appeal matter no. 40556/99).

4.5.3    Subpoena to the ATO and NSW Police and related challenges to costs

46    In the course of the Tenancy proceedings in the Supreme Court, Mr Croker issued a subpoena to the New South Wales Police Service (NSW Police) and sought a motion seeking compliance following partial compliance with the subpoena by the NSW Police. While access to discrete documents was permitted, on 20 April 1999 Adams J quashed the remainder of the subpoena on the ground that the categories amounted to a “mere fishing expedition” in seeking production of documents relating to the private affairs of persons unconnected with the litigation or were not otherwise relevant and that the subpoena lacked a proper forensic purpose (Croker v Perks - matter no. 3003/99). Mr Croker did not attend the hearing. The applicant does not rely upon the subpoena and motions the subject of the decision of Adams J as vexatious proceedings.

47    However, later steps are relied upon in support of the vexatious proceedings order. In this regard, Mr Croker applied for leave to appeal the decision of Adams J quashing the subpoena. That application was decided on the papers by consent. Handley JA dismissed the application with costs, holding that “the proposed appeal does not appear to be reasonably arguable and indeed in my view the judgment under challenge was correct”: Croker v Commissioner of Police - matter no. 40303/99 at [3]. In due course, the High Court refused an application for special leave to appeal with costs on 26 May 2000, finding that “…there is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal”: Croker v Commissioner of Police of New South Wales S236/1999 [2000] HCATrans 272 (26 May 2000).

48    On 3 March 1999, before Barr J heard and determined the appeal, Mr Croker also issued a subpoena to the Australian Taxation Office (ATO) seeking production of taxation records showing the status of taxation of the Boarding House premises and employment of employees. The Deputy Commissioner of Taxation applied to set aside the subpoena on the ground that the proceedings did not involve the carrying into effect of the purposes of any tax laws and therefore were immune from production under s 16(3) of the Income Tax Assessment Act 1936 (Cth). That application was upheld by Dunford J and the subpoena set aside: Croker v Perks [1999] NSWSC 296 at [6]-[8]. The notice of motion filed by Mr Croker for compliance with the subpoena was also dismissed. Dunford J ordered that Mr Croker pay the costs of both his own and the Deputy Commissioner of Taxation’s motions: Croker v Perks [1999] NSWSC 296 at [10]. The subpoena and motions the subject of the decision by Dunford J are not relied upon by the applicant here as vexatious proceedings.

49    However, Mr Croker again sought leave to appeal the decision. That application was dismissed with costs by Sheller and Stein JJA on the ground that the reasons of Dunford J were “clearly right” and “[a]n appeal in this matter has no prospects of success”: Croker v Commissioner of Taxation - matter no. 40247/99 at [9] (emphasis added). The High Court similarly dismissed Mr Croker’s application for special leave to appeal with costs, with Gummow J stating that “[a]ny appeal would enjoy no prospects of success, given the long-established body of authority respecting the operation of section 16 of the Income Tax Assessment Act”: Croker v Commissioner of Taxation of the Commonwealth of Australia S186/1999 [2000] HCATrans 104 (17 March 2000) (emphasis added).

50    In assessing party/party costs in favour of the Commissioner of Taxation for $8,055.65 in the proceedings related to the subpoena (Supreme Court matter no. 30003/99 and Court of Appeal matter no. 40247/99), the costs assessor found that Mr Croker’s submissions on costs were “nonsensical though it seems that he is suggesting that because he was in a parlous financial state that this in some way prevents me determining the reasonableness of the costs sought by the applicant. As I say, such a submission is completely wrong at law and makes no sense.” On 24 November 2000, Mr Croker applied to have the determination of the costs assessor reviewed. However the application could not proceed as Mr Croker failed to comply with the mandatory notice requirement under s 208KA(5) of the Legal Profession Act 1987 (NSW): Letter dated 17 January 2001 from the Supreme Court of New South Wales Costs Assessment Section, Costs Assessment File Number C/L 91448/00.

51    By summons filed on 31 January 2001 and amended on 12 March 2001, Mr Croker sought orders among other things that the determination of the costs assessor be set aside and that the Commissioner of Taxation pay damages for intimidation of Mr Croker: Supreme Court matter no. 10270/2001. On 21 March 2001, Master Malpass dismissed Mr Croker’s summons with costs on the basis that the Court lacked power to review a determination made by a costs assessor; nor did the Court have power to extend the time within which an application could be made for review by a panel, Mr Croker being out of time for making any such application (Croker v Commissioner of Taxation [2001] NSWSC 188 at [4]-[5]). The Master also observed that in any event the grounds of appeal relied on by Mr Croker were irrelevant, and “there is nothing before the court which would suggest that there is any basis arising from the merits of the case which would justify either the granting of leave or an extension of time to bring an application for leave. The delay in the bringing of these proceedings is left unexplained”: ibid at [8].

52    On 24 July 2001, Mr Croker filed a summons for leave to appeal from Master Malpass’ decision (Court of Appeal matter no. 40272/2001). This was dismissed with costs on 23 November 2001 by Priestley and Heydon JJA. On 29 November 2001, Mr Croker filed a notice of motion seeking an order that the Full Court of the Supreme Court hear and grant leave to appeal, that the decision of Priestley and Heydon JJA be set aside, and that Mr Croker be awarded $200,000 in compensatory damages. On 25 February 2002, the motion was dismissed.

53    The costs awarded to the Commissioner of Taxation in the Supreme Court proceedings were not met by Mr Croker, and bankruptcy notices were then issued. In proceedings not relied on by the applicant as vexatious, Mr Croker challenged the bankruptcy notices in the Federal Magistrates Court where Registrar Hedge set aside the notices and made an order for costs of $100 in favour of Mr Croker. However, on 11 June 2002, Mr Croker sought an extension of time within which to file an application for review of the Registrar’s decision on costs. The other elements of his application were that he sought orders: (1) to set aside the costs order made by Registrar Hedge and order costs in accordance with the prescribed scale of costs under the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules), or alternatively, costs under the Federal Court Rules as assessed and if necessary taxed; (2) that the Deputy Commissioner of Taxation be restrained from issuing a further bankruptcy notice against him; and (3) damages in the sum of $350,000. The application was dismissed with costs by Driver FM in Croker v Commissioner of Taxation [2002] FMCA 128. First, his Honour held with respect to the application for review of the costs order that “the applicant has not advanced an arguable case in support of his application” (at [17]). Secondly, with respect to the additional relief sought, his Honour held that:

10.    The applicant has sought to advance some fairly adventurous propositions in addition to the simple application to review the costs order and nothing has been put forward at this stage to support the application insofar as it relates to the proposed restraining order and the damages claim. It would in the ordinary course be improbable, although not impossible, that I might be convinced to make a permanent restraining order preventing the issue of a bankruptcy notice. It is also improbable, although not impossible, that I might be persuaded to entertain a damages application in the exercise of the Court’s accrued jurisdiction.

11.    It does seem, however, a tenuous proposition that those matters could be properly ventilated in a simple review application on a costs order where the principal issue in dispute between the parties has already been finally resolved. That issue was whether the bankruptcy notice formally issued to the applicant should be set aside. That issue having been finally resolved it is unlikely in my view that the interests of justice would be served by having a much larger issue ventilated on an application to review the registrar’s costs order.

54    An appeal from the decision of Driver FM was dismissed with costs, Madgwick J holding that Mr Croker “had no reasonable prospects of success in upsetting the costs order made by the Registrar [for $100], and that Federal Magistrate Driver was correct in refusing to extend time”: Croker v Commissioner of Taxation [2002] FCA 1432; (2002) 124 FCR 286 at [9].

55    Separately, a certificate of taxation was issued to retrieve the costs of $5,781.98 awarded in the High Court in favour of the Commissioner of Taxation referred to above at [49]. This was registered as a civil judgment in the Local Court pursuant to s 41 of the Bankruptcy Act 1966 (Cth) in the amount of $5,837.98, which included the Local Court registration fee (Local Court matter no. 5908/01). The outstanding debt led to a bankruptcy notice being issued, which Mr Croker sought to challenge in the Federal Court. In Croker v Commissioner of Taxation [2002] FCA 1157, Moore J held the judgment obtained in the Local Court was legally flawed because s 14 of the High Court of Australia Act 1979 (Cth) and s 105 of the Service and Execution of Process Act 1992 (Cth) did not provide a mechanism for the enforcement of High Court judgments by registration in a State Court. However, Moore J was satisfied that a debt was clearly owed, and held that the bankruptcy notice should not be set aside merely because the judgment in the Local Court was obtained by an inappropriate procedure (at [15] and [20]). Mr Croker’s application to set aside the bankruptcy notice was dismissed with costs on 18 September 2002.

56    Mr Croker was successful in his appeal from Moore J’s decision to the Full Court of Federal Court in Croker v Commissioner of Taxation [2003] FCAFC 23. In that decision delivered 25 February 2003, the Full Court held that the registration was a nullity, and that the primary judge had erred in regarding registration of the certificate “as effective until such time as it was set aside ‘as a judgment’ of the Local Court” rather than a mere clerical entry in the records of the Court (at [10]). The Full Court allowed the appeal, setting aside the bankruptcy notice. Mr Croker subsequently sought an order for costs in the appeal, which was dismissed on 27 March 2003 on the basis that there had been no disbursements in the matter, given that Mr Croker’s court fees had been waived at all times and that he had prepared his own litigation (Croker v Commissioner of Taxation [2003] FCAFC 66 at [3] and [4]). Each of the proceedings relating to the certificate of taxation registered in the Local Court as a civil judgment are not relied on by the applicant as vexatious proceedings.

57    On 12 December 2003, the High Court heard Mr Croker’s application for special leave to appeal the decision of Madgwick J in Croker v Commissioner of Taxation [2002] FCA 1432; (2002) 124 FCR 286 refusing an extension of time to review the $100 costs order (see above at [54]) together with his application for special leave from the Full Court’s decision to refuse costs in his appeal from Moore J’s decision in Croker v Commissioner of Taxation [2003] FCAFC 66 (see above at [56]). Mr Croker submitted that self-represented litigants “if successful should be awarded costs in circumstances where they are justified up to the amount that the respondent was successful or a solicitor or a legal practitioner would receive” (Croker v Commissioner of Taxation for the Commonwealth [2003] HCATrans 542 (12 December 2003)). Gummow and Heydon JJ were not satisfied that there were sufficient prospects of success in any application to reopen the decision in Cachia v Hanes (1994) 179 CLR 403; nor that there were otherwise reasonable prospects of success in either application for special leave. Mr Croker’s application for special leave in each matter was refused with costs.

4.5.4    Defamation proceedings against the Commissioner of Taxation arising from publication of Mr Croker’s name in the bankruptcy proceedings in the court list

58    In April 2003, Mr Croker brought proceedings against the Commissioner of Taxation alleging defamation by way of causing Mr Croker’s name to be published in a bankruptcy application on the Federal Court’s website, in The Sydney Morning Herald’s law list and on the Court lists within the Law Courts Building. On 28 October 2003, Levine J dismissed the action as frivolous and “irremediably hopeless” pursuant to a motion brought by the Commissioner of Taxation: Croker v Commissioner of Taxation [2003] NSWSC 980 at [16]. Levine J also referred to the fact that Mr Croker had provided a post office as his address on the statement of claim, observing that, “[w]ere it necessary for me to come to a definitive conclusion, I would have no reservation in saying that the positing of a post office as an address could be viewed in the light of the history of this matter as I understand it, only as an exercise in deception to obviate the proper processes of this Court” (at [7]). The costs were assessed on 23 July 2004 at $12,972.30.

59    On 24 February 2004, Mr Croker sought leave to appeal from the decision of Levine J. This application was dismissed with costs by Giles and Hodgson JJA on 4 June 2004, holding that “the judge was plainly correct, and there are insufficient prospects of success in an appeal from his decision to warrant a grant of leave to appeal”: Croker v The Commissioner for Taxation of the Commonwealth of Australia - matter no. 41082/03 at [3] (Giles JA). Hodgson JA further explained that “[i]n no sense was the Court or the Sydney Morning Herald the agent of the opponent in this case” and in any event, the Court and The Sydney Morning Herald would have the benefit of the absolute privilege attaching to words spoken or written in the ordinary course of court proceedings (at [5]-[6]). In due course, Gummow and Kirby JJ refused Mr Croker’s application for special leave to appeal to the High Court with costs on 10 March 2005, holding that “[t]here is no reason to doubt the correctness of the decision of the primary judge or the Court of Appeal. The further complaint in the special leave application asserting the invalidity of the Defamation Act 1974 (NSW) has no substance” (Croker v Commissioner of Taxation [2005] HCATrans 137 (10 March 2005)).

60    Following Mr Croker’s non-compliance with the order for costs made by Levine J in Croker v Commissioner of Taxation [2003] NSWSC 980 (see above at [58]), the Commissioner of Taxation issued a further bankruptcy notice on 29 October 2004. On 29 November 2004, Mr Croker filed an application in the Federal Court seeking to have the notice set aside and an award of $1 million or other amount in “compensatory, exemplary and notional damages”. Mr Croker contended that the bankruptcy notice was invalid as it overstated the quantum of his debt to the Commissioner of Taxation by $63 plus interest, being the fee paid in the Local Court by the Commissioner of Taxation for the certificate to be registered. Hely J set aside the bankruptcy notice on this basis, but dismissed Mr Croker’s claim for damages: Croker v Commissioner of Taxation [2005] FCA 127; (2005) 145 FCR 150. With respect to the damages claim, Hely J held at 154 [19] that:

The nature of this claim is not particularised in the application, and it has not been shown to be, as the application suggests, an application made under the Bankruptcy Act. Mr Croker’s affidavit provides very little guidance as to the basis of the claim, although reference is made to a claim against the Commissioner for compensation for detriment caused by defective administration. The defective administration is presumably that the Commissioner has now issued three bankruptcy notices against Mr Croker, each of which has been set aside… Such a claim does not give rise to a cause of action known to the law.

61    The applicants do not rely on this proceeding as vexatious for the purposes of this application.

4.5.5    Judicial Review proceedings

62    On 3 June 2004, Branson J dismissed an application filed by Mr Croker under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Croker v Commissioner for Taxation of the Commonwealth of Australia [2004] FCA 958. Despite her Honour identifying and discussing “at some length” deficiencies in Mr Croker’s original application at the first directions hearing and giving leave to amend the application, Mr Croker’s amended application did not identify a decision to which the ADJR Act applied (at [1] and [2]). Mr Croker’s application also sought $5 million in damages for negligence. However, Branson J held that the ADJR Act does not provide for the recovery of damages for negligence, and further that Mr Croker’s application gave “no hint of any basis upon which the respondent owed a duty of care to the applicant such as to give rise to a claim in damages for negligence”. Furthermore, while not raised in his application, Mr Croker raised at the hearing possible claims relating to malicious prosecution. In this regard Branson J held that “I am not satisfied that this proceeding should be maintained to allow Mr Croker at some later time to raise a claim touching on malicious prosecution” (at [5]). As Mr Croker had already been afforded one occasion to amend the application but the amended application did not address the problems with Mr Croker’s claims which had earlier been raised with him, Branson J held that no useful purpose would be served by granting further leave to amend, and the application was therefore dismissed with costs (at [7]).

63    Mr Croker sought an order dispensing with the requirement for an application for leave to appeal to be filed within seven days, and leave to appeal from the judgment of Branson J. That application was dismissed with costs on 3 August 2004 by Emmett J: Croker v Commissioner of Taxation [2004] FCA 1409. Emmett J held that “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” (at [4]). Emmett J found no error apparent in the judgment of Branson J and “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” (at [5]).

64    In separate judicial review proceedings, Mr Croker filed an application on 25 July 2005 claiming $10 million damages arising out of the bankruptcy notices which had been set aside by the Federal Magistrates Court, the Federal Court, and the Full Court of the Federal Court (see above at [53], [60] and [56] respectively). Mr Croker alleged that the proceedings in bankruptcy were made falsely and maliciously. Mr Croker further alleged that the Commissioner of Taxation had violated the Constitution and his constitutional right to procedural fairness, and that this involved a tortious interference with Mr Croker’s constitutional rights. By notice of motion filed on 30 September 2005 the Commissioner of Taxation sought to have the application struck out. On 6 April 2006, Cowdroy J dismissed Mr Croker’s application with costs on the ground that the Court lacked jurisdiction to entertain the claims (Croker v Commissioner of Taxation [2006] FCA 372 at [23]-[27]). Nor in any event did Cowdroy J consider that Mr Croker’s application and statement of claim disclosed any reasonable cause of action as none of the elements of a cause of action in tort were pleaded; the pleadings asserted conclusions and did not plead any material facts (ibid at [28]-[29]).

65    Mr Croker’s application for leave to appeal Cowdroy J’s decision was refused by Edmonds J on 8 June 2006. His Honour held that the draft notice of appeal “contains no arguable ground of appeal. I do not find that surprising because I am unable to identify any error in the judgment below” (Croker v Commissioner of Taxation [2006] FCA 720 at [3]).

66    On 12 March 2009, Moore J heard an application filed by Mr Croker alleging misfeasance in public office on the part of the Commissioner, and seeking relief by way of damages and interest. Moore J found that a similar application had been made and determined by Cowdroy J in his decision on 6 April 2006. Moore J considered there was no course open to him but to dismiss the application on the ground that the earlier decision had given rise to an issue estoppel and, in any event, he was bound to follow the judgment of Cowdroy J: Croker v Commissioner of Taxation for the Commonwealth of Australia [2009] FCA 275 at [2]-[3]. Mr Croker was ordered to pay the respondent’s costs on an indemnity basis on the ground that it should have been apparent to Mr Croker that the proceedings, being in substance of the same character as those heard and determined by Cowdroy J, would be dismissed and that his case was hopeless (at [4]).

67    Not satisfied with that result, Mr Croker sought leave to appeal from this decision. On 8 April 2009, Jagot J dismissed the application on the ground that Moore J’s decision was not attended by any real doubt and appears plainly correct (at [8]). Her Honour also ordered that Mr Croker pay indemnity costs on the basis that “[i]n the context and background of this matter, it must have been known to Mr Croker that this application for leave was hopeless and doomed to fail… This is a case where the proceeding should never have been brought” (Croker v Commissioner of Taxation [2009] FCA 353 at [15]-[16]).

4.6    The Dental proceedings (December 1998-August 2005)

4.6.1    Initial proceedings

68    In proceedings instituted in the District Court on 15 December 1998, Mr Croker alleged professional misconduct on the part of a dentist who had treated Mr Croker for the renewal of old fillings in 1996-1998 and sought $100,000 in damages. By a statement of particulars dated 7 June 1999, Mr Croker claimed among other things that his pain and suffering resulted in “the procrastination of studies over a three-year period that [Mr Croker] undertook with the assistance of Federal Government loans and the use of a Disability Support Pension” and that the negligent acts by the defendant dentist had left Mr Croker in a position of financial uncertainty. Mr Croker filed an affidavit in response to a request from the defendant for further and better particulars. With respect to the affidavit, Sinclair ADCJ held that “apart from stating that he had been a patient of the defendant who had carried out some work on him and he suffered pain and discomfort, it does not direct itself to the basic simply [sic] questions in the request for particulars”: Croker v Challoner - District Court matter no. 9108/98. Further, Sinclair ADCJ held that “[t]he pleading, albeit prepared by the plaintiff in person, does not come within, to use a simple phrase, a bull’s roar of setting out those facts which would set out a cause of action and the particulars quite properly requested of the defendant have not been provided. I cannot see a clearer case of want of prosecution on the part of the plaintiff to properly prosecute his claim.” Mr Croker’s claim was struck out for want of prosecution with costs.

69    Mr Croker filed a summons in the Supreme Court in September 1999 seeking to set aside the decision of Sinclair ADCJ. Mr Croker also sought $120,000 plus damages. On 5 October 1999, Hidden J ruled that a single judge of the Supreme Court lacked jurisdiction to deal with an appeal and that Mr Croker required leave from the Court of Appeal if he wished to set aside the decision: Croker v Challanor - Supreme Court matter no. 1212/99. The application was struck out and no order was made as to costs. This application is not relied on by the applicant as a vexatious proceeding.

70    However, subsequent proceedings are relied upon. First, by notice of appeal filed in the Court of Appeal on 10 December 1999, Mr Croker sought to appeal from the decision of Sinclair ADCJ and $150,000 in damages. I note that Mr Croker had earlier filed a notice of appeal seeking to appeal the decision of Hidden J, although it appears that that notice of appeal was superseded. Secondly, on 11 May 2000, Mr Croker was directed by the Registrar to provide an address for service in compliance with the Supreme Court Rules by the following week, to replace the address previously provided (being the address for Darlinghurst Post Office, see above at [41]). Thirdly, by notice of motion filed 18 May 2000, Mr Croker sought to have this direction set aside and that he be permitted to use the Darlinghurst Post Office address as his address for service. On 20 July 2000, Giles JA ordered that the notice of motion be dismissed with costs (Croker v Ewen; Croker v Challoner [2000] NSWCA 186). His Honour held that the Post Office address did not comply with the Supreme Court Rules and no reason had been shown as to why Mr Croker’s residential address or some other address would be inappropriate. In the same judgment, Giles JA dismissed with costs Mr Croker’s oral application for an extension of time to appeal the decision of Sinclair ADCJ, holding that “Sinclair DCJ’s decision was unarguably correct, and the grounds of appeal make no sense as challenges to this decision. In those circumstances I consider that an extension of time should be refused, and in consequence the notice of appeal should be struck out” (at [18]).

71    Mr Croker sought to appeal the decision of Giles JA in the Court of Appeal by application filed 3 August 2000. The motion was dismissed with costs on 23 November 2000 in Croker v Challoner [2000] NSWCA 342. Powell JA (Mason P and Fitzgerald JA agreeing) held at [5] that:

Despite the fact that, in September 1999, Mr. Croker claimed to be a “student at law, Sydney Institute of Technology”, the form of that Statement of Claim demonstrates clearly that Mr. Croker has little, if any, acquaintance with, or understanding of, proper litigious practice and procedure and, still less, of the rules of pleading – the form of the Statement of Claim makes it well nigh incomprehensible, a fact which makes it impossible to discern what was the nature of the claim – in particular, whether it was based on a contract, or in negligence, or on some other cause of action – which Mr. Croker was seeking to advance against Dr. Challoner in the proceedings.

72    Nor was a document entitled “Statement of Particulars” filed by Mr Croker any more informative (at [9]). Equally, Powell JA found at [29] that the written submissions filed by Mr Croker, much of which were directed to the order made by Giles JA dismissing his notice of motion “were well nigh incomprehensible and failed completely to address the issues required to be dealt with on an application such as this; nor were the submissions made by Mr. Croker on the hearing of the application directed to those issues.” Powell JA concluded that “Mr. Croker has failed utterly to demonstrate that Giles JA misdirected himself in the point of principle or that the discretion vested in him miscarried”: Croker v Challoner [2000] NSWCA 342 at [31].

4.6.2    Judicial review of decision of the Deputy Registrar of the High Court

73    Undeterred, Mr Croker applied for special leave to appeal the Court of Appeal’s decision in Croker v Challoner [2000] NSWCA 342 in the High Court. However, by letter dated 14 September 2001, Deputy Registrar Gray advised Mr Croker that his application for special leave to appeal was deemed to have been abandoned as he had failed to file and serve the application books in compliance with Order 69A of the High Court Rules 1952 (Cth).

74    Mr Croker then instituted proceedings against the Deputy Registrar of the High Court, seeking relief in the Federal Court under s 5 of the ADJR Act and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The relief sought included a writ of certiorari to quash the decision of the Deputy Registrar, an order for a writ of mandamus compelling the Deputy Registrar to accept the application books and set a date for the hearing, and that the Deputy Registrar pay the sum of $1 million plus damages.

75    At directions hearings on 18 December 2001 and 21 February 2002, Allsop J (as his Honour then was) “spent some time explaining” to Mr Croker that if, as Mr Croker asserted, he had a valuable claim against his dentist, Dr Challoner, “he should perhaps take all steps possible to resuscitate his High Court application” and that “the most appropriate way to try and protect [any rights to claim] is to ask a Judge of the High Court, a Justice of the High Court to undo the effect of the deemed abandonment” (Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 at [27]-[28]). His Honour stood the matter over and Mr Croker made an enquiry of a Deputy Registrar of the High Court seeking practical assistance as to the appropriate way to set aside the abandonment of the proceedings. A High Court Deputy Registrar responded by letter on 6 March 2002 outlining Mr Croker’s options should he wish to apply to set aside the deemed abandonment. Notwithstanding what Allsop J found to be “the clarity and simplicity of the advice”, Mr Croker decided to make no application to the High Court or to take any further steps in the High Court in an effort to resuscitate or replace his application for special leave (Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 at [31]).

76    On 3 February 2003, Allsop J dismissed Mr Croker’s application, finding “no foundation whatsoever under any of the claimed heads of review” under the ADJR Act (at [44]), nor any relevant jurisdictional error “demonstrated as even arguable” (at [49]). Furthermore, his Honour held that, even if he were wrong, he would not grant relief in light of the available course in a superior Court which was seized of the matter, as proposed to Mr Croker at the directions hearings, and as also advised to Mr Croker in the letter from the High Court Deputy Registrar dated 6 March 2002 (at [46]).

77    In addition, his Honour referred to an allegation by Mr Croker in an affidavit, without any particulars or coherent explanation, that the “act of changing sole carriage” of the proceeding from one Deputy Registrar to another was an act of bad faith. Allsop J held that “[t]he assertion is baseless and should not have been made, even by a litigant in person” (at [11]). His Honour made the same comment with respect to Mr Croker’s assertion in his affidavit that the failure of the Deputy Registrar to “co-operate with payment dates of Australian Government Pension that [Mr Croker] is a receipt [sic] of... fell on deaf ears” and was a further act of bias and bad faith (at [14]-[15]).

78    Finally, Allsop J granted leave for Dr Challoner, the second respondent, to apply to argue for a special costs order, holding at [50] that:

The application has displayed no substantive merit at all. If Mr Croker had had legal advice, and if he had persisted with the proceedings, a question of indemnity costs would certainly have arisen. Dr Challenor [sic] has been put to further expense in a case which lacks merit entirely, and in respect of the substance of which another Court could have dealt with the matter substantively…

4.6.3    Interlocutory proceedings regarding photocopying costs

79    In the course of the Federal Court proceedings before Allsop J, Mr Croker also made a number of requests for documents from the High Court concerning proceedings brought by Mr Croker against parties, other than Dr Challoner, relied on by Mr Croker to demonstrate what he asserted was some practice in the High Court inconsistent with the approach taken by the Deputy Registrar. At [33] of his Honour’s reasons, Allsop J held that “there is nothing in [those documents] which assists in any way in assessing the lawfulness and appropriateness of Deputy Registrar Grey’s conduct in respect of Mr Croker’s application against Dr Challenor [sic]”. In the course of proceedings, Allsop J made orders that the cost of photocopying charged to Mr Croker be reduced to 50 cents per page. However, Mr Croker asserted that he had a right to photocopy documents free of charge by reason of his Disability Support Pension and reg 2(1) and (4) of the Federal Court of Australia Regulations 1978 (Cth). His Honour refused to accede to the request, and Mr Croker sought leave to appeal the interlocutory decision. Beaumont J heard the application, initially standing it over until Mr Croker had an opportunity to “show a real need to photocopy the material” to the satisfaction of the docket Judge: Croker v Deputy Registrar of the High Court [2002] FCA 1117. On 4 October 2002, Beaumont J dismissed the application and held that his Honour was “still not satisfied that Mr Croker has demonstrated to the Court any need to pursue his proposed appeal” (Croker v Deputy Registrar of the High Court [2002] FCA 1260 at [3]). However, due to a request made by Mr Croker to adjourn the proceedings on medical grounds, Beaumont J ordered that the operation of the dismissal be suspended up to 31 October 2002 and that liberty be reserved for Mr Croker to apply on or before 31 October 2002 to vary or discharge the dismissal order.

80    On 4 October 2002, Mr Croker did indeed seek to vary or discharge the order dismissing the application for leave to appeal, relying upon substantially the same arguments previously put by him. Mr Croker submitted that he required the documents on two grounds; first it was said that the material would indicate that there is a practice in the High Court Registry which contradicts the Deputy Registrar’s decision; and secondly it was said that the document goes to an argument that the Deputy Registrar was biased. Beaumont J held that “[s]ignificantly, in my view, Mr Croker has made no effort on the several occasions the matter has now been before me to seek to establish that either of these two arguments have any real prospects of success” (Croker v Deputy Registrar of the High Court [2002] FCA 1343 at [3]). Furthermore, Beaumont J held at [4], “[i]n any event, as I have earlier said, it seems to me any activation of the appellant process at this stage of the principal proceedings would be premature. It is clear that the trial Judge has been actively engaged in the management of the litigation in all its dimensions, including the present question of putting in place machinery to enable the applicant to use the documentation he seeks to rely upon at the final hearing of the principal proceedings”.

4.6.4    The order for security for costs in Mr Croker’s appeal from Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34

81    Mr Croker sought leave to appeal from the decision of Allsop J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 (see [76] above). The second respondent sought security for costs under s 56 of the FCA Act. On 15 May 2003 Madgwick J ordered that the appellant provide security in the sum of $8,000 to Dr Challoner, and that the appeal be stayed until that security is provided, on the ground that the appeal was hopeless and lacked any reasonable prospects of success: Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 at [10] and [24]. In reaching that view, Madgwick J held at [19] that:

The only possible error made by his Honour was to go too far in trying to help Mr Croker to assert any valuable right that he might have had… There is no arguable basis of procedural unfairness on the part of his Honour, let alone ostensible or actual bias.

82    Further, with respect to the allegation that Allsop J was biased or had been procedurally unfair in misreading the figure claimed, Madgwick J found that the claim “is a ludicrous notion as a foundation for a denial of procedural fairness or, more specifically, for a manifestation of ostensible or actual bias” (at [21]).

83    Mr Croker sought leave to appeal from the security for costs order, relying on the decision in Endormer Pty Ltd (In Liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510 to contend that the application should have been heard by a Full Court rather than a single judge. By judgment dated 2 July 2003, Hely J dismissed the application, holding that it was clear that a single judge of the Court has power to order the provision of security for the costs of an appeal under s 56 of the FCA Act and O 52 r 20 of the Federal Court Rules. Hely J also held that Mr Croker “has not shown that his Honour’s assessment of the prospects of success on the appeal was erroneous” (Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [8]). To the contrary, his Honour found that “it is plainly a proper case for the provision of security, given the appellant’s impecuniosity and the prospects of success on the appeal” (at [12]).

84    On 1 December 2003, the Full Court of the Federal Court dismissed with costs “a purported appeal” by Mr Croker under s 25(2)(a) of the FCA Act from the decision of Hely J on the ground that “[i]t is obvious that the purported “appeal” is incompetent”: Croker v Deputy Registrar of the High Court of Australia [2003] FCAFC 280. Furthermore, the Full Court held at [8] that:

Orders for costs have not restrained the appellant from occasioning the second respondent continued expenditure on solicitors’ costs and counsel fees in a succession of hopeless proceedings. The interests of justice demand that it be ordered that any further proceeding in the matter sought to be commenced by the appellant not be accepted for filing in the Court unless a Judge directs an officer to accept the document.

85    Mr Croker sought special leave to appeal the Full Court’s decision in the High Court on the grounds that the decision was “inconsistent with natural law, rules of natural justice, s 56(1) of the Federal Court of Australia Act 1976 (Cth), the Commonwealth of Australia Constitution Act 1900 (Imp), the Covenant on Civil and Political Rights 1966 (UN) and the Declaration of Human Rights 1948 (UN) and prevented the course of justice”: Croker v Deputy Registrar of the High Court of Australia [2005] HCATrans 504. The application was refused by McHugh and Heydon JJ on 5 August 2005 with costs on the grounds that the appeal had no prospects of success and did not raise a question of law of public importance.

4.7    The Credit proceedings (July 1999-February 2001)

86    In July 1999 Mr Croker brought proceedings against the Commonwealth Bank of Australia (the Commonwealth Bank) alleging harsh and oppressive conduct, undue influence, false and misleading conduct, and acting without his consent in relation to regulating the amount of credit available to him, amongst other allegations. The allegations were related to a continuing credit agreement between Mr Croker and the Commonwealth Bank with a limit of $3,000, which was subsequently increased and resulted in $5,000 outstanding. Mr Croker alleged harsh and oppressive conduct apparently in relation to interest rates, regulating the amount of credit to which Mr Croker had access and the terms on which Mr Croker extended his credit limit. On 2 March 2000, Tamberlin J of the Federal Court found that the statement of claim failed to meet the standards required by the Federal Court Rules, “[e]ven having regard to the fact that Mr Croker is unrepresented, and making every liberal allowance in his favour” (Croker v Commonwealth Bank of Australia [2000] FCA 279 at [2]). Whilst particulars were sought by the Commonwealth Bank, they were “not served in any material way to clarify or make more precise the exact nature of the allegations” (at [2]). Ultimately, Tamberlin J held that the statement of claim failed to disclose any cause of action or was in any way compliant with the Rules and that “it would be vexatious and embarrassing to require the Bank to attempt to speculate as to the matters which it is required to meet” (at [8]). His Honour ordered that the statement of claim be struck out with costs, but granted leave to Mr Croker to re-plead with 14 days.

87    Mr Croker filed an amended statement of claim, which was dismissed with costs by Tamberlin J in April 2000 pursuant to a motion filed by the Commonwealth Bank: Croker v Commonwealth Bank of Australia [2000] FCA 488. At [19]-[20], Tamberlin J held:

This is the second time that I have heard this matter and I have had numerous directions in the course of administering this proceeding. I am familiar with the numerous matters which have been raised by Mr Coker in relation to this matter. I am conscious that he is appearing for himself but in all the circumstances and having regard to the Rules and the requirements of the Orders, particularly O 11 and O 12 I am satisfied to the high standard required by the decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 that the pleadings advanced by Mr Croker disclose no arguable cause of action within the meaning of O 20 r 2.

I am also of the view that the proceeding is frivolous or vexatious and an abuse of process. Accordingly, having given an indulgence on a previous occasion and some indication as to what is necessary, and having regard to the additional matters raised by Mr Croker, I am satisfied that this is a case where the proceedings must be dismissed generally. Accordingly I dismiss the application and the proceedings and I order that Mr Croker pay the costs of the Bank in relation to this application.

88    Mr Croker sought to appeal the decision of Tamberlin J summarily dismissing the proceedings. However, the Commonwealth Bank filed a motion to dismiss the appeal as incompetent, given that leave is required to appeal from an interlocutory decision. In upholding the objection to competency, Beaumont, Mathews and Lehane JJ then considered whether leave to appeal should be granted, holding that “neither the (amended) statement of claim, nor any other of the documents filed by the appellant discloses a reasonable cause of action” (Croker v Commonwealth Bank of Australia [2000] FCA 722 at [11]). Furthermore, given that the amount in dispute was in the order of $5,000, the Full Court held that the proceedings could have been commenced in the Local or District Court (at [12]). Leave to appeal was therefore refused, with costs.

89    Mr Croker sought special leave to appeal to the High Court from the Full Court’s decision. On 20 February 2001, Gummow and Callinan JJ refused the application with costs holding that “[n]o ground has been shown to attract the intervention of this Court in that dispute” (Croker v The Commonwealth Bank of Australia – No. S141 of 2000).

4.8    The Social Security proceedings (August 1999-January 2009)

4.8.1    The social security proceedings regarding the application for an advance on the Disability Support Pension

90    Mr Croker’s claim, as explained by Sackville J in Croker v Department of Families & Community Services [2000] FCA 269 at [4]-[10], can be summarised as follows. Mr Croker alleged that he was paid an advance payment on 25 June 1997 which he repaid by fortnightly deductions of $38.50 from his Disability Support Pension between 10 July 1997 and 25 December 1997. He also claimed that on 26 December 1997 he applied for a further advance payment of the Disability Support Pension. However he appeared to allege that the Department of Families and Community Services (the Department) advised that $38.50 remained outstanding and had to be repaid before a further advance could be granted. He claimed to have repaid that amount but, when he again applied for an advance payment on 2 January 1998, alleged that the Department had advised him that the legislation had changed and he was no longer eligible to receive an advance payment. Mr Croker claimed that these actions caused him financial difficulties. He applied to the Social Security Appeals Tribunal (SSAT) but that application was dismissed, it would appear on the ground that the Tribunal had no jurisdiction. A subsequent application for review to the AAT was also unsuccessful.

91    By proceedings in the Federal Court instituted on 27 August 1999, Mr Croker sought damages with respect to the advance payment application on 26 December 1997 from the Department in the sum of $140,000 and unspecified damages in equity for, among other things, loss of enjoyment of life, damages to character and reputation, and “procrastination of studies”. The statement of claim was struck out by Sackville J in Croker v Department of Families & Community Services [2000] FCA 269 on the ground that it was “clearly defective and… disclos[ed] no reasonable cause of action” (at [21]). However, his Honour afforded the applicant leave to file an amended application and amended statement of claim within 28 days.

92    In Croker v Department of Families & Community Services [2000] FCA 883, Sackville J found that “the amended application filed pursuant to that leave was “in substantially the same form as the original application, except that it adds the Commonwealth of Australia as a respondent” (at [7]). Furthermore, the deficiencies in the amended statement of claim were such that it should be struck out as disclosing no reasonable cause of action (at [34]). His Honour declined to extend a further opportunity to Mr Croker to file a statement of claim raising a reasonable cause of action, given that he had had two opportunities already to do so and that he had relied on contentions described by the Judge as “manifestly unsustainable” (at [36]). Nor could Mr Croker satisfactorily answer what further purpose could be served by granting leave to file further amended statement of claim (at [37]). His Honour concluded that “[i]n these circumstances, as a matter of justice, the proceedings should be brought to an end. No useful purpose would be served by granting the applicant leave to file a third version of the statement of claim. It is unfair to the respondents for the proceedings to continue” (at [38]).

93    Leave to appeal from the interlocutory judgment of Sackville J was refused with costs on 29 August 2000 (Croker v Dept of Family & Community Services [2000] FCA 1304). In refusing leave, Beaumont J (with whom Lehane and Conti JJ agreed) concluded that:

10. …It is clear beyond any argument that there is no basis for any claim for fiduciary duty in the present case; and no other cause of action known to common law or any claim in equity has emerged as even conceivably capable of being propounded on any reasonable basis.

11. In those circumstances, in my opinion, the interest of justice requires that leave to appeal should be refused… In the present case, not only is there not sufficient doubt attending the decision of the primary Judge to warrant its being reconsidered by a Full Court but, in any event, it has not been demonstrated that substantial injustice would result if leave were refused supposing, for the sake of the argument, that decision to be wrong.

94    Subsequently on 14 September 2001, the High Court (Gleeson CJ and Callinan J) refused Mr Croker’s application for special leave to appeal with costs, finding that there were insufficient prospects of success to warrant the grant of special leave (Croker v Department of Family and Community Services – No. S237 of 2000). The following exchange occurred in the course of oral argument indicating again Mr Croker’s determination to seek relief disproportionate to the damage alleged and irrespective of the costs to others:

CALLINAN J: I suspect that the opportunity cost of you not getting $500 six months earlier might be about $5 or $10, and you want to take up the time of this Court and cost the taxpayers of Australia thousands and thousands of dollars in prosecuting a claim for that amount of money. Are you serious about this?

MR CROKER: I am serious, your Honour.

4.8.2    The social security proceedings regarding refusal of the Disability Support Pension

95    In 3 January 2006 Mr Croker instigated proceedings in the SSAT after he was refused the Disability Support Pension by the Department of Employment and Workplace Relations following a medical reassessment that concluded that Mr Croker was insufficiently impaired to meet the test for its grant. The SSAT affirmed the decision to refuse his pension.

96    Mr Croker sought review of the SSAT decision in the AAT. An application by Mr Croker for a stay of the SSAT decision in the interim was refused by Ms Ettinger, Senior Member of the AAT on 13 June 2006: Croker v Department of Employment and Workplace Relations [2006] AATA 536. This application is not relied on by the applicant as a vexatious proceeding.

97    Mr Croker sought to appeal the AAT’s decision to refuse a stay in the Federal Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). He subsequently amended his notice of appeal to seek an order pursuant to s 39B of the Judiciary Act. While the process of amending did not comply with the Federal Court Rules, any procedural objection was waived by the Secretary. In Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257, Buchanan J upheld as “irresistible” the Secretary’s objection to the competency of the appeal, as originally filed, given that there was a long line of authority that a decision to grant or not grant a stay is not a decision for the purposes of s 44 of the AAT Act (at [9]). In any event, his Honour considered that there was no substance in the suggestion that the AAT had committed an error of law (at [10]). Nor did his Honour consider that the amended notice of appeal advanced matters, finding that no jurisdictional error was identified or basis for the grant of an injunction (at [11]). In the circumstances, Buchanan J held that there was no alternative but to dismiss the proceedings with costs (at [12]).

98    On 27 October 2006, Gyles J dismissed with costs an application for leave to appeal the decision of Buchanan J by Mr Croker (Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1447) holding that there is “no serious reason for doubting the basis of the decision” (at [3]).

99    Mr Croker did not appear at the AAT hearing on 1 December 2006 and the proceedings were dismissed. Mr Croker subsequently sought to explain his non-appearance due to his misrecording of the hearing time combined with pressures associated with university studies and vision impairment, and applied for reinstatement of the proceedings (Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1059 at [3]). An application to the AAT for the proceedings to be reinstated was allowed, the Senior Member being satisfied that Mr Croker’s non-attendance was due to a mistake (at [16]) and “there is an apparently credible and arguable basis on which Mr Croker could seek to satisfy this Tribunal that he has made out his entitlement under s94 of the SSA” (at [17]). This proceeding is not relied upon as vexatious.

100    The substantive review application, also not relied on by the applicant as a vexatious proceeding, was heard by the AAT on the same day. The AAT affirmed the decision of the SSAT refusing to grant Mr Croker a Disability Support Pension: Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1224. While the AAT found that Mr Croker’s impairment (somatoform disorder) had significantly disrupted his ability to work and satisfied the qualification threshold provided for in s 94(1)(b) of the Social Security Act 1991 (Cth) (at [54]), it also found that that impairment was not “of itself” sufficient to prevent him from doing “any work” independently of relevant training within the next two years (at [75]).

101    Mr Croker’s appeal against the AAT’s decision to the Federal Court was dismissed on 30 October 2007 by Branson J with costs on the basis that no error of law affecting the Tribunal’s decision was identified: Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at [34].

102    Mr Croker sought to appeal the decision of Branson J on grounds including “the orders are not in the public interest”, “inadequate hearing preparation by mistake in hearing date” and “alleged bias”. However, the proceedings were stayed by orders made by Emmett J on 6 March 2008 until such time as Mr Croker provided security for the respondent’s costs in the sum of $3,000: Croker v Secretary, Department of Employment and Workplace Relations (No 2) [2008] FCA 340 at [2] and [4]. In upholding the respondent’s application for security for costs, Emmett J found that costs which Mr Croker was ordered to pay and which had been assessed at in excess of $7,000 had not been paid and that the appeal had no prospects of success (at [3], [6] and [10]).

4.8.3    The social security proceedings regarding the Newstart Allowance and Education Entry Payment

103    Following termination of Mr Croker’s Disability Support Pension, he began receiving the Newstart allowance, being an unemployment benefit. As a condition of this allowance, Mr Croker entered into successive activity agreements, obliging him to do certain things directed towards preparing him for entry into the workforce including commencing his “Education and Training placement by 8/2/2007”. Mr Croker enrolled in a full-time diploma course at the Sydney Institute of Technology and a legal studies course at Curtin University in Western Australia by correspondence. On the basis of this enrolment he applied for the Education Entry Payment under s 665U of the Social Security Act 1991 (Cth). This was a single payment in the sum of $208 directed towards assisting with the costs associated with taking on full-time studies.

104    On 8 August 2007, the SSAT held that Mr Croker was not entitled to the Education Entry Payment. That decision was affirmed by the AAT on 18 December 2007 constituted by Senior Member Hunt on the grounds (as best they could be discerned) of noncompliance with the criteria in s 665U(1)(c)(i) and (ii). Specifically, the AAT found that Mr Croker did not cease to be qualified for the Newstart allowance because of his enrolment; nor was he required to participate in any course of study to satisfy the activity test or comply with the Newstart activity agreement: Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 90.

105    Mr Croker sought to appeal on a question of law against the AAT decision in the Federal Court under s 44 of the AAT Act. That appeal was dismissed as incompetent with costs by Stone J on 27 June 2008 on the ground that no proper question of law was disclosed by either the initial or amended notice of appeal: Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 at [16]-[22]. Rather, Mr Croker’s “amended notice of appeal lists six grounds of appeal which consist merely of assertions that the AAT came to the wrong conclusion or an unjust conclusion or made other unspecified errors” (at [21]). These proceedings are not relied on as vexatious.

106    Mr Croker sought leave to appeal from the judgment of Stone J and an order that compliance with the time restriction for filing the notice of motion under O 52 r 10(2A)(b) of the Federal Court Rules be dispensed with. The respondent agreed that the circumstances warranted an extension of time for the filing of the notice of motion, but opposed the grant of leave to appeal. Whilst the extension of time was granted and was not relied upon as vexatious (Croker v Secretary, Department of Employment and Workplace Relations [2008] FCA 1549), leave to appeal was refused by Graham J on 8 September 2008 (Croker v Secretary, Department of Employment and Workplace Relations (No 2) [2008] FCA 1550). In refusing leave, Graham J held at [16]-[17]:

The applicant has failed to direct the Court’s attention to any aspect of the primary judge’s reasons for judgment, in dismissing the appeal which was before her Honour and finding that no questions of law had been raised, that suggests that her Honour erred in dismissing the appeal as incompetent. It is apparent from the grounds of appeal upon which the applicant would now wish to rely that none of them are directed at potential errors in her Honour’s reasoning such that an injustice would result if leave to appeal were refused. There is nothing to suggest that her Honour’s decision on the matters that she was called upon to decide may be wrong.

As to whether or not substantial injustice would result if leave were refused I would return to the amount in issue in this case, namely $208. It does not seem to me that a substantial injustice would result if leave to appeal were refused, even if one were to suppose that her Honour’s decision was wrong.

4.8.4    The social security proceedings regarding the Newstart allowance and activity agreement with MAXNetwork

107    Mr Croker sought review in the SSAT of a decision of a Centrelink Authorised Review Officer requiring him, by virtue of his claim for a Newstart allowance, to enter into an activity agreement with MaxNetwork Employment under s 605(1) of the Social Security Act 1991 (Cth). The SSAT affirmed the decision of the Authorised Review Officer. By an application lodged on 22 January 2008, Mr Croker appealed to the AAT. In Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 682 (on which the applicant does not rely as a vexatious proceeding), Senior Member Allen affirmed the decision of the SSAT, holding that:

The question regarding the terms of that agreement, and whether it was a suitable agreement for the Applicant, have never been considered either by an Authorised Review Officer or by the Social Security Appeals Tribunal, and, consequently, are not before me today. The only question before me is whether the Applicant could be required to enter into the Newstart Activity Agreement, and what is abundantly clear from subsection (6) section 605 of the Social Security Act 1991 is that he could be so required.

108    Mr Croker sought to appeal against the AAT decision by way of notice of appeal filed in the Federal Court on 14 August 2008. The Secretary, Department of Education, Employment and Workplace Relations, objected to the competency of the appeal on the ground that the notice of appeal did not disclose a question of law. Jacobson J heard the notice of objection to competency on 25 September 2008 (notwithstanding Mr Croker’s submission that he had not been served with that notice until the hearing) given, among other things, that Mr Croker had given a post office address as his address for service (notwithstanding that Bennett J had found in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 that this was not a proper address for service), the number of unsatisfied costs orders made against Mr Croker, and the fact Mr Croker was “well on notice of the fact that an appeal from the Administrative Appeals Tribunal must be on a question of law” (referring to the recent decision to that effect in Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971): Croker v Secretary, Department of Education, Employment and Workplace Relations (No 3) [2008] FCA 1473 at [14]-[17].

109    As to the competency of the appeal, his Honour held at [19] that:

It is plain in my view that the questions of law do not comply with the principles stated in the authorities. They are simply not questions of law. Moreover, they are not even relevant to the issues raised before the Administrative Appeals Tribunal. The purported questions cavil with the issue of whether Mr Croker is eligible for the Disability Support Pension. They are not relevant to any issue which was raised before the Administrative Appeals Tribunal.

110    Nor did the proposed additional questions of law have any merit (at [20]-[26]). Accordingly, his Honour dismissed the notice of appeal as incompetent and held that “[t]here is no basis for remitting it to the Administrative Appeals Tribunal to determine any questions of fact as was suggested by Mr Croker” (at [27]).

111    An application for leave to appeal the decision of Jacobson J was refused with costs on the ground that the decision of the trial judge “is not attended by any real doubt” (Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1587 at [21]). In so holding, Jagot J also rejected the claims of apprehended bias against Jacobson J and a breach of procedural fairness, holding that the decision by the trial judge, having heard Mr Croker’s submissions, to deal with the objection to competency rather than adjourning the proceedings and finding the proceedings to be incompetent does not give rise to any suggestion of prejudgment (at [18]).

4.8.5    The social security proceedings regarding the Disability Support Pension and Education Supplement – First Proceedings (not relied upon as vexatious)

112    Mr Croker also instituted proceedings in the SSAT for review of a decision by the Secretary rejecting his claim to a Disability Support Pension. On 1 June 2009, the SSAT overturned the decision and directed that Mr Croker receive the Disability Support Pension with backdated payments to 29 April 2008.

113    In July 2009, Mr Croker sought to receive the Pensioner Education Supplement, seeking to have payments also backdated to 29 April 2008, to coincide with the date from which he was found to be eligible for the Disability Support Pension. Mr Croker received the supplement from 15 June 2009 but the backdated claim was refused by the Secretary and subsequently by the SSAT on review. Mr Croker sought review of the SSAT decision in the AAT which identified the sole issue before it as to determine the correct start date for the payment of the Pensioner Education Supplement payment. Senior Member Bell affirmed the decision under review on the basis that the Social Security Administration Act 1999 (Cth) did not permit a payment of a Pensioner Education Supplement to be made to Mr Croker earlier than the date on which he first communicated to Centrelink his course of study while being qualified for the supplement, finding that “despite Mr Croker’s grievances with the initial decision to cancel his disability support pension, there is no legal basis for Mr Croker’s pensioner education supplement payment to be backdated beyond 15 June 2009”: Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 493 at [11].

114    Mr Croker sought to appeal the AAT decision in the Federal Court. The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, sought summary dismissal of the proceedings on the basis that they did not raise any arguable cause of action. However, the appeal was discontinued on an oral application in the course of the hearing before Rares J on 8 October 2010 when Mr Croker was offered payment of his full entitlement in the backdated Pensioner Education Supplement by the Secretary: Croker v Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1136 at [16]. In the course of matter it became clear that Centrelink had written to the Department of Finance and Deregulation regarding Mr Croker’s application for the backdated Pensioner Education Supplement to be considered as an act of grace payment. Rares J was critical of the position taken by the Department of Finance and Deregulation in refusing to consider the backdated Pensioner Education Supplement as a possible act of grace payment “until all alternative avenues such as appeals to the court are exhausted”, given that it resulted in “an apparent waste of public money and the time of this Court” (at [31]). This first set of social security proceedings are not relied on by the applicant here in support of his application for a vexatious proceedings order.

4.8.6    The social security proceedings regarding the Disability Support Pension and Education Supplement – Second Proceedings

115    In April 2010, Mr Croker wrote to Centrelink seeking Disability Support Pension payments in arrears for the period of 23 months from 6 June 2006 when the Disability Support Pension to Mr Croker was cancelled to 29 April 2008 when Mr Croker was again paid the Disability Support Pension by a decision of the SSAT. The request was refused by a Centrelink Authorised Review Officer who decided that the correct start date for payment of the Disability Support Pension was 29 April 2008. That decision was affirmed by the SSAT. Mr Croker sought review of the SSAT decision in the AAT, contending that he had qualified for the Disability Support Pension continuously since 1994.

116    In affirming on 6 April 2011 the decision of the SSAT, Senior Member Britton found that none of the statutory criteria for the backdating of the start date of a pension were met: Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 230 at [15]-[21]. Nor, while the Tribunal has power to decide whether the decision to pay Mr Croker the Disability Support Pension from 29 April 2008 is the correct and preferable decision, does it have power to review the decisions made by the SSAT, AAT and Federal Court to affirm the decision made in September 2005 to cancel Mr Croker’s pension: at [23]-[24].

117    Subsequently, on 3 May 2011 the Assistant Secretary, Special Claims and Land Policy Branch, Asset Management and Parliamentary Services, Department of Finance and Deregulation, refused an application by Mr Croker for a payment under s 33 of the Financial Management and Accountability Act 1997 (Cth) (FMA Act) for the same period. Mr Croker applied for judicial review of this decision in the Federal Court under the ADJR Act. That application was dismissed by Robertson J in Croker v Minister for Finance and Deregulation [2011] FCA 1188. In so holding his Honour rejected Mr Croker’s submission that a break in the payments, later reinstated, constituted a denial of natural justice, finding that submission to be “legally unsustainable” (at [19]). Nor did his Honour consider that the Minister erred in construing “special circumstances” for the purposes of s 33 of the FMA Act, while the so-called allegations of bad faith related largely to the merits of the decision.

118     On 21 November 2011, Rares J dismissed an application by Mr Croker for an extension of time within which to file a notice of appeal against Robertson J’s decision, holding that none of the grounds in the draft notice of appeal had “the slightest substance”: Croker v Minister for the Department of Finance and Deregulation [2011] FCA 1418 at [3]. Furthermore, his Honour held at [9]:

Having read his Honour’s careful judgment, I can perceive no possible basis on which it could be argued that his Honour made any error of the kinds described in the loose and general language in the draft notice of appeal, making allowances for the fact that Mr Croker is not a lawyer. It would be a travesty of justice if this notice of appeal were allowed to be filed, notwithstanding that Mr Croker asserted that he came to the Court on the last day for filing the appeal, unprepared for its rejection.

119    Rares J also held that the proposed appeal “has no prospect of success and would amount to an abuse of the process of the Court” (at [11]).

4.8.7    The social security proceedings regarding the Department of Employment and Workplace Relations

120    On 2009, Mr Croker lodged three applications with the AAT for review of various decisions by the Chief Executive Officer of Open Universities Australia Pty Ltd. The decisions related to Mr Croker’s applications to have the balance of his FEE-HELP (a student loan administered by the Department of Education, Employment and Workplace Relations and other agencies including Open Universities Australia Pty Ltd) re-credited on the grounds of ill-health. Some of Mr Croker’s applications to re-credit the balance were made after the 12 month expiry period, and he was therefore required to show that it was not possible for him to lodge the applications within that period. Furthermore, Mr Croker’s applications to review the decisions by the Chief Executive Officer to refuse Mr Croker’s re-crediting applications were lodged outside the 28-day period required by s 29 of the AAT Act although the Tribunal granted Mr Croker an extension of time in respect of each of the three applications.

121    Nonetheless Mr Croker failed to comply with directions to file and serve statements and supporting evidence, and was granted an extension despite providing the Tribunal with an inadequate explanation and supporting documentation regarding the delay. Mr Croker again did not file his documents; nor did he attend the hearing on 22 December 2009.

122    On 15 January 2009, the AAT gave its decision dismissing the applications under s 42A(5)(b) of the AAT Act for Mr Croker’s failure to comply with the Tribunal’s directions. In explaining her reasons, Senior Member Toohey found that Mr Croker had had a reasonable opportunity to present his case, she was not satisfied that there was any good reason why he could not have complied, and “Mr Croker is familiar with the Tribunal’s processes. He can be under no misapprehension as to the possible consequences of failing to comply with directions”: Croker v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 25 at [30].

4.9    The Mobile Phone proceedings (March 2000-September 2005)

123    On 9 March 2000, while the Tenancy, Dental, Credit and Social Security proceedings were still on foot, Mr Croker instituted proceedings in the Federal Court against Philips Electronics Australia Limited, Dick Smith Electronics Limited and Telstra Corporation Limited (Federal Court matter no. N197/2000) arising from his dissatisfaction with a mobile telephone.

124    The whole of the statement of claim was struck out by Branson J in Croker v Philips Electronics Australia Limited [2000] FCA 991 on the ground that (at [14]):

It is so defective that it would be plainly embarrassing to require any respondent to answer it. As to all respondents, I am satisfied that the statement of claim in its present form has a tendency to cause prejudice, embarrassment and delay to the proceeding. It is not a document capable of being sensibly amended.

125    Nonetheless, her Honour was not satisfied that it would be appropriate at this stage to stay or dismiss the proceedings. Branson J therefore afforded Mr Croker one further opportunity to re-plead (at [13]-[15]).

126    In the course of her reasons, Branson J also pointed to Mr Croker’s conduct in increasing his claim for damages to $100,000 after comments from the Bench questioning whether he might consider seeking relief in a more appropriate forum given that the claim concerned the supply of a single mobile phone and the risk that any costs otherwise payable if he were to succeed may be reduced if judgment were awarded for less than $100,000 (at [4]-[5]).

127    Mr Croker filed an amended statement of claim pursuant to the grant of leave. However, the amended pleading met the same fate. In Croker v Philips Electronics Australia Limited [2000] FCA 1516, Branson J held that the amended statement of claim must be struck out on the basis that it had a tendency to cause prejudice, embarrassment and delay to the proceeding (at [8]). The statement of claim was described by her Honour as “a confusing document” in which numerous allegations were made against each respondent without material facts or proper particulars, and the relevance of some of the statutory provisions relied on was “at best obscure”. On this occasion, her Honour refused to grant Mr Croker leave to file a fresh statement of claim and dismissed the proceedings, holding at [12] that:

The proceeding concerns the purchase of a single mobile telephone. This Court is not, as I have drawn to the applicant’s attention on previous occasions, an appropriate forum for the resolution of minor disputes of this kind. There are consumer tribunals and courts of limited jurisdiction which can hear and determine complaints of the type which the applicant wishes to advance in this proceeding. Indeed it appears that the applicant has already made two applications to the Fair Trading Tribunal of New South Wales arising out of his purchase of the mobile telephone. The parties have already been before the Court on this proceeding on six occasions. No doubt the costs of the respondents are mounting. Court time is being taken up with little, if any, commensurate public benefit. The applicant has had two opportunities to plead his case and has not been able to do so in an acceptable way. I have no reason to think that he will be able to do so in the future. In the circumstances, it seems to me that no useful purpose will be served from my granting the applicant leave to file a third version of the statement of claim. It would, I consider, be unfair to the respondents and contrary to the interests of justice generally to allow this proceeding to continue.

128    An application for an extension of time to file a notice of motion seeking leave to appeal from this decision was dismissed with costs on 22 November 2000 by Stone J in Croker v Philips Electronics Australia Limited [2000] FCA 1731. In particular, at [6] her Honour held that:

…Mr Croker has identified as possible grounds of appeal the natural laws of justice, natural law and the rule of law. He claims that these concepts show that a cause of action exists. In my opinion, Mr Croker has not provided any good reason why the Court’s discretion should be exercised in his favour and, to the extent that it is relevant I think that the unlikelihood of leave to appeal being given were the time to be extended and, indeed, of the appeal being successful, all lead to the same conclusion.

129    Undeterred yet again, Mr Croker filed a notice of motion seeking leave to appeal against the decision of Stone J. That appeal was struck out as incompetent by Madgwick J on 7 December 2000: Croker v Philips Electronics Australia Ltd [2000] FCA 1935. Special leave to appeal to the High Court against the decisions of Branson and Stone JJ was refused on 20 November 2001 by which point the claim for punitive damages had escalated to the sum of $1 million in the material provided to the High Court. The High Court considered that it was not appropriate to grant special leave to challenge the sufficiency of reasons for procedural orders, given that the applicant’s complaints, if capable of adequate legal articulation, could be the subject of fresh proceedings in whatever may be the appropriate tribunal.

4.9.1    The second application in the Federal Court

130    In November 2002, Mr Croker sought leave to file a fresh application in the Federal Court against the same respondents with respect to the mobile phone seeking compensatory, exemplary and nominal damages of $3 million. In Croker v Philips Electronics Australia Limited [2002] FCA 1393, Sackville J directed the Registrar to refuse to accept the documents for filing, holding that proceedings are an abuse of process of the Court, or alternatively, frivolous or vexatious. In this regard, his Honour observed at [8]-[9] that:

8.…The affidavit does not make clear either the material facts or the causes of action upon which the applicant intends to rely against the respondents…

9. …The applicant does not make the proceedings suitable for determination in this Court simply by arbitrarily selecting the figure of $3 million as the appropriate compensation for a complaint arising out of a consumer transaction involving the purchase of a telephone.

131    In November 2002, Mr Croker sought leave to appeal from Sackville J’s directions to the Registrar to refuse to accept his application and supporting affidavit: Croker v Philips Electronics Australia Ltd [2002] FCA 1454. While not relied upon as a vexatious proceeding, I note that leave to appeal from that decision was refused on the ground that the decision constituted a direction and was not subject to appeal: Croker v Philips Electronics Australia Limited [2003] FCAFC 43; see also Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353.

4.9.2    The proceedings in the CTTT with respect to the second mobile phone

132    Mr Croker commenced proceedings in the CTTT in November 2003: Croker v Hutchison 3G Australia Pty Ltd [2004] NSWCTTT 584 (matter no. GEN 03/50189). In those proceedings he alleged that a second mobile phone purchased by him from Hutchison 3G Australia Pty Ltd (Hutchison) was not fit for the purpose because of poor network coverage and because an error message appeared on the handset. NEC Australia Pty Ltd was also a party on the ground that it was the manufacturer of the handset. Mr Croker claimed $25,000 in damages for “loss of use of amenitie (sic), humiliation, embarrassment, loss of reputation, mental anguish and injury, stress and depression”.

133    In August 2004 Tribunal Member O’Keefe ordered that Mr Croker’s service agreement with Hutchison be terminated and that the respondents jointly pay him $262, on the basis that the mobile phone was not fit for its purpose within the meaning of s 19 of the Sale of Goods Act 1923 (NSW). However, he ordered the applicant to pay the respondents’ costs. In respect of the claim for damages Member O’Keefe observed that:

Such claim for “$25,000” is not merely misconceived, but fanciful… the applicant failed to articulate any rational basis for this claim either in law or in fact, and having put the respondents to some obvious costs, it is just and equitable to allow the respondents their costs of the hearing day…

134    An application by Mr Croker for rehearing of the application was also rejected (CTTT matter no. GEN 04/53617).

135    Mr Croker attempted to renew the CTTT proceedings in November 2004, alleging that the service agreement had not been terminated as ordered, and seeking an additional $5,000 in damages and an order for costs: CTTT matter no. GEN 04/53930. The application was dismissed.

136    While the attempt to renew the CTTT proceedings are not relied upon by the Registrar, the ensuing proceedings in the Supreme Court are relied upon as vexatious. In April 2005 the Assistant Registrar of the Supreme Court ordered Mr Croker to provide $10,000 as security for costs and that the proceedings be stayed pending provision of security in that amount. In July 2005, Malpass AsJ dismissed the defendant’s motion seeking to set aside the whole of Registrar Howe’s orders, holding that the material before the Court suggested that this was “just another incidence of him litigating hopeless proceedings with no intention to satisfy any costs orders that may be made against him”: Croker v Hutchinson 3G Australia Pty Limited [2005] NSWSC 733 at [26].

137    An appeal against that decision was dismissed in September 2005, with the proceedings being described as “hopeless…[with] no reasonable prospects of success”: Croker v Hutchison 3G Australia Pty Ltd [2005] NSWSC 1242 (Latham J).

4.10    The Jewellery proceedings (March 2002-June 2003)

4.10.1    Background

138    The series of proceedings grouped together as the “Jewellery proceedings” arise out of a claim by Mr Croker against Angus and Coote (Holdings) Limited (Angus & Coote) for damages for alleged damage to a ring left with Angus & Coote to provide a free quotation of the cost of remodelling the ring, together with three other rings. Initially proceedings by Mr Croker in the CTTT (matter no. GEN 02/9770) commenced on 6 March 2002 were dismissed on the ground that the Tribunal lacked jurisdiction because the quotation was free and therefore no contract was entered into. In any event, the Member found that Mr Croker’s claim would fail because he had failed to show that it was more likely than not that the ring was damaged whilst in the respondent’s possession: Croker v Angus & Coote (Holdings) Limited [2002] NSWCTTT 186.

139    Mr Croker applied for a rehearing of the matter which was refused on the ground that the Chairperson’s delegate was not satisfied that Mr Croker may have suffered a substantial injustice (CTTT matter no. GEN 02/24164). By proceedings instituted in the Supreme Court (matter no. 11872/02), Mr Croker appealed the original CTTT decision and the refusal to permit a rehearing. That appeal was dismissed by Newman AJ on 19 November 2002 holding that, while the CTTT erred in holding that it lacked jurisdiction, nonetheless the matter should not be remitted to the Tribunal because it had determined that it would have found against the appellant on the merits of the case in any event.

140    No reliance is placed upon these proceedings in the vexatious proceedings application save as background.

4.10.2    Further proceedings in the Jewellery proceedings alleged to be vexatious

141    Thereafter, however, a number of proceedings were pursued by Mr Croker which are said to be vexatious. First he sought to appeal the decision of Newman AJ. The orders sought in the notice of appeal included an order awarding damages in the sum of $150,000 “or other amount”. On 28 March 2003, Registrar Schell dismissed the appeal as incompetent because leave to appeal was not sought. Leave was required because Mr Croker conceded that the property the subject of the proceedings was valued in the vicinity of $400 and therefore the appeal involved property valued at less than $100,000. In any event, Registrar Schell considered that, even if leave were not required, the grounds of appeal appeared to be untenable (Court of Appeal matter no. 41186/02).

142    On 26 May 2003, Santow JA concluded that the Registrar had rightly held the appeal to be incompetent and dismissed Mr Croker’s notice of motion to set aside his orders with costs (Court of Appeal matter no. 41186/02).

143    By a notice of motion filed on 16 June 2003, Mr Croker sought leave to appeal from the order of Santow JA. The Court of Appeal found at [12] that Santow JA “was clearly correct in refusing to set aside the Registrar’s order that the claimant’s appeal from the decision of Newman AJ should be dismissed as incompetent.” The notice of motion was therefore dismissed with costs (Court of Appeal matter no. 41186/02).

4.11    The Discrimination proceedings (February 2003-September 2009)

4.11.1    Sydney Institute of TAFE and University of Technology proceedings

144    On 5 February 2003 Mr Croker filed proceedings in the Federal Court pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), alleging that the Sydney Institute of TAFE (TAFE) and the University of Technology (the University) had breached the Disability Discrimination Act 1992 (Cth). Mr Croker appeared to allege that TAFE failed to provide proper support for his disabilities (described as a repetitive strain injury he sustained in 1989 arising out of his employment and tinnitus) which led to a failure to gain admission to an LLB course at the University. By way of relief, Mr Croker sought an apology from the respondents, admission to an LLB/BB course at the University and $1 million in damages. On 6 March 2003 the matter was transferred to the Federal Magistrates Court where TAFE filed an application under r 13.10 of the Federal Magistrates Court Rules for an order that the proceedings be dismissed on the basis that the application and affidavit filed by the applicant disclosed no reasonable cause of action, was frivolous or vexatious, and was an abuse of process. A similar application was subsequently filed by the University.

145    The proceedings were summarily dismissed by Raphael FM in Croker v State of NSW & Anor [2003] FMCA 181 pursuant to r 13.10 of the Federal Magistrates Court Rules with costs. With respect to the claim against TAFE, Raphael FM held at [16] that:

All in all, the claims as articulated by Mr Croker are clearly without merit. Mr Croker had an opportunity to put on further evidence which might have persuaded me that an arguable case could be made out. He did not avail himself of that opportunity. Instead he attempted to give some evidence from the bar table which I declined to accept. Mr Croker is no stranger to court proceedings (see Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 and Croker v Commissioner of Taxation [2002] FMCA 128). He has spent several years in and around the faculty of law at UTS. The disabilities he alleges he suffers from are not disabilities of the mind. There is no reason why he should not be judged upon his performance.

146    Similarly, Raphael FM found that Mr Croker’s case against the University of a breach of the Disability Discrimination Act, namely that he was unable to meet the requirements for enrolling in the LLB course at the University because of his disability, was not arguable and “must fail” (at [18]).

147    Mr Croker sought leave to appeal from the summary dismissal decision delivered on 19 May 2003 in the Federal Court. TAFE sought security for costs in the sum of $5,000, granted by Bennett J on 8 September 2003 in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942. In considering the exercise of discretion, her Honour found that Mr Croker put submissions only of the most general kind as to why the decision appealed from was said to be incorrect or as to any denial of natural justice, and he had not established that there were good prospects of success on the application for leave to appeal or in the appeal itself (at [31]-[32]). Nonetheless her Honour was prepared to assume for the purposes of the application for security for costs that Mr Croker had a reasonably arguable claim (at [44]). With respect to the risk that any costs order against Mr Croker would not be satisfied, her Honour found that:

33.    The Sydney Institute has adduced evidence in respect of numerous costs orders in a number of different proceedings in a number of different Courts over a number of years in which Mr Croker has been ordered to pay the costs of the other party or parties. In no case has Mr Croker paid any part of those costs.

34.    Mr Croker made a submission that, on ‘equitable grounds’, he should not be ordered to pay any costs of a successful party in any litigation in which he was unsuccessful and the other party successful. He said that, as the Court waives its fees and gives the applicant a right to be heard, there should be no burden on any impecunious applicant for any further costs, even if such an applicant is unsuccessful and that this applies at first instance and to any appeal brought by that applicant, whatever the outcome. He said words to the effect that the other party ‘should simply accept the fact that they can't recover costs’. Mr Croker further submitted that, as he appeared in person and had his Court fees waived, he did not have any recoverable costs if he were successful so that, accordingly, the respondent should not be awarded costs if it were successful.

35.     I reject Mr Croker's submissions. The fact that he put those submissions, together with history of unpaid costs in litigation in which he has been an unsuccessful party and his impecuniosity, leads me to conclude that there is no real prospect that a costs order against him in these proceedings would be satisfied.

148    Her Honour further found at [41] that:

Mr Croker has an extensive litigation history with what Ms Ronalds [counsel for the first respondent] describes as ‘a litany of costs orders made both by the High Court, this Court and by the NSW Court of Appeal which continue to be unpaid’. As she points out, this also constitutes a failure to comply with orders of this Court and of other Courts. The amount of outstanding costs which have been ordered by the High Court and the Federal Court in relation to one series of litigation, which remain unpaid, are in excess of $40,000. Mr Croker does not seem to have the financial means to meet any adverse costs order or, apparently, the inclination to do so.

149    Bennett J also held that Mr Croker’s use of the Darlinghurst Post Office as his address for service did not comply with O 7 r 6(1) of the Federal Court Rules. Her Honour also considered that “there would be injustice to the first respondent if it were required to contest the issues as to which it was successful for a second time without the probability of obtaining its costs in the event that it was successful again” (at [46]). Bennett J concluded that it was appropriate to make an order requiring Mr Croker to provide security for costs of the first respondent, subject to which the proceedings would be stayed pending further order.

150    On 8 September 2003 Mr Croker filed a notice of motion seeking an order setting aside the whole of the judgment of Bennett J (Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 1159 at [4]). In considering the Court’s jurisdiction to set aside, vary or discharge an interlocutory order, Emmett J observed that “[i]t could be conducive to great injustice and an enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order re-litigated at will” (at [9]). His Honour also observed in that regard that there is no right of appeal from the decision of Bennett J, as that decision was made on appeal from the decision of the Federal Magistrates Court, and that this may be the reason why Mr Croker made the application that he made. In any event, Emmett J found that the only basis advanced by Mr Croker to have the matter re-litigated “is his assertion that the decision of Bennett J was erroneous” (at [13]), and no basis had been established for the decision of Bennett J to be revisited (at [14]).

151    Mr Croker applied for special leave to appeal in the High Court, asserting that the decision of Emmett J was “inconsistent with natural law, rules of natural justice, s 56(1) of the Federal Court of Australia Act 1976 (Cth), the Commonwealth of Australia Constitution Act 1900 (Imp), the Covenant on Civil and Political Rights 1966 (UN) and the Declaration of Human Rights 1948 (UN)”, being substantially the same grounds as those advanced in support of Mr Croker’s application for special leave to appeal in the Dental proceedings (see above at [85]). The application was dismissed by McHugh and Heydon JJ on 5 August 2005 on the grounds that any appeal would have no prospects of success and no question of law of public importance was raised: Croker v Sydney Institute of TAFE [2005] HCATrans 505 (5 August 2005).

4.11.2    Department of Education and Training (NSW) proceedings

152    On 20 March 2009, Emmett J heard an application by the State of New South Wales, Department of Education and Training (the Department) to summarily dismiss proceedings instituted by Mr Croker, or in the alternative, for security for costs. Mr Croker claimed that he was enrolled in a Diploma of Website Development at TAFE and that he informed the Department that, because of a disability, not all units in the Diploma would be attempted. When he attempted to re-enrol in the Diploma, the Department failed to accept his application on the grounds of inadequate education level, inadequate finance and full enrolment. The Department sought summary dismissal on a number of grounds, the first being that the application brought by Mr Croker disclosed, relevantly, only allegations about the conduct of the TAFE and the correct respondent would therefore have been the TAFE Commission. In Croker v Department of Education and Training (NSW) [2009] FCA 350, Emmett J held at [6] that:

Clearly the proceeding as presently constituted cannot possibly succeed and it should be dismissed. Whether or not the applicant has a valid claim against the TAFE Commission is a matter about which I am presently unable to express any view. It may be that the applicant will commence a fresh proceeding against the TAFE Commission. However, unless any such proceeding discloses some basis for relief, which is certainly not disclosed in the present application, any such further proceeding would suffer the same fate.

153    Emmett J dismissed the application, but declined to make the further order requested by the Department that the applicant be restrained from instituting any proceeding against the State relating to the subject matter of the present proceeding without the leave of the Court (at [7]).

154    The Department sought an order that the applicant pay its costs of the motion in a lump sum of $9,500, on the basis that Mr Croker had a significant history of unsuccessful litigation and the Department was concerned that preparing a bill of taxation would incur further unnecessary costs and expense (Croker v Department of Education and Training (NSW) (No 2) [2009] FCA 351 at [1]). In making an order for costs in the lump sum sought, Emmett J considered at [1] that:

The evidence before me indicates that the applicant has previously been a party to proceedings in which in 67 instances he has had judgment entered against him or has had an appeal or claim dismissed. Fifty-three costs orders have been made against the applicant. As I indicated on the last occasion, this proceeding had no possible prospect of success.

155    Mr Croker sought leave to appeal by a notice of motion against both decisions of Emmett J. In Croker v Department of Education and Training (NSW) [2009] FCA 431 Buchanan J dismissed that application with costs. His Honour held first that the notice of motion insofar as it sought leave to appeal the substantive decision was brought out of time and he was “not satisfied that special reasons have been shown for an extension of time in which to bring the notice of motion” (at [3]). Secondly, and in any event, his Honour found that the draft notice of appeal contained grounds that were “confused and some are quite evidently unrelated to the matters dealt with by Emmett J... The draft grounds of appeal do not address at all the defect identified by Emmett J” (at [4]). Moreover, insofar as bias was alleged, presumably by Emmett J, his Honour disregarded the allegation, there being no support of any kind for such a suggestion (at [4]). Accordingly Buchanan J held that an appeal against the order dismissing the earlier proceedings would be without any prospect of success and leave to appeal should be refused (at [5]). Thirdly, Buchanan J held that it was inevitable that the discretion to grant leave or to file the notice of motion or leave to appeal would be exercised against Mr Croker. Finally, even if leave to appeal was not required and Mr Croker could appeal as of right, Buchanan J held at [10] that:

The attempt to secure leave to appeal by the notice of motion which Mr Croker filed, or to appeal, was quite misconceived. The proceedings which he originally commenced were devoid of any legal foundation. The challenge to Emmett J’s judgments was without any prospects of success or any redeeming features. I am satisfied that, if necessary, Mr Croker’s attempt to initiate an appeal may be dismissed under s 31A of the FCA Act and that I have power to make such an order.

156    Finally, on 14 September 2009 in Croker v TAFE Commission [2009] FCA 1024, Edmonds J refused an application by Mr Croker for an extension of time in which to file an originating application against the TAFE Commission. Under the HREOC Act, Mr Croker had 28 days following termination of the complaint to institute proceedings in the Federal Court. The 28 days expired on 9 January 2009, and Mr Croker filed his initiating process on 26 May 2009. Edmonds J accepted the respondent’s submissions that the pleadings do not explain how it is alleged that his disability led to his exclusion from enrolment, which defect also infected Mr Croker’s earlier application dismissed by Emmett J (at [22]). As such, Edmonds J held that, even if an extension of time were granted, a motion for summary dismissal by the respondent would inevitably succeed for the same reasons held by Emmett J in Croker v Department of Education and Training (NSW) [2009] FCA 350 (see above at [152]). His Honour found that “there is no utility in acceding to the applicant’s application for an extension of time and it therefore must be refused with costs” (at [24]).

4.12    Miscellaneous Consumer, Trader & Tenancy Tribunal proceedings (July 2004-October 2004)

157    On 9 July 2004, in a proceeding not relied on by the applicant as vexatious, Mr Croker filed an application in the CTTT seeking $1,210.50. The respondent, Broad Stitches & Embroidery Pty Ltd, was ordered to pay the sum of $100 (CTTT matter no. GEN 04/33681).

158    On 17 September 2004, Mr Croker applied for an order of $1,060.50 in relation, the Registrar contends (without objection), to initials engraved on a pen. In October 2004, the CTTT ordered that Mr Croker receive $54.50 to represent the sum of a refund and a replacement item (CTTT matter no. GEN 04/43757), and noted that “[t]he degree of inconvenience suffered by the Applicant is viewed as minimal as a letter of demand may well have resulted in a refund and to above offer”.

4.13    The Cufflinks proceedings (July 2004-June 2011)

4.13.1    Background

159    This series of proceedings commenced with an action for damages by Mr Croker in the CTTT against the High Court of Australia instituted on 2 July 2004 (matter no. GEN 04/35365) (the First CTTT proceedings). By those proceedings, Mr Croker alleged that he had purchased a pair of commemorative cufflinks from the High Court for $50 which had tarnished. Initial proceedings seeking damages in the sum of $1,100 in damages were discontinued by Mr Croker because, it would appear, a replacement set of cufflinks was provided.

160    A second application was made to the CTTT against the High Court on 16 March 2005 alleging that the replacement cufflinks were not of merchantable quality seeking $132 for the cost of repairs and $900 for financial and non-financial damages (matter no. GEN 05/14570) (the Second CTTT proceedings). Those proceedings were dismissed by the CTTT on the basis that it lacked jurisdiction. Mr Croker applied for a rehearing under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The application was not granted because it was “misconceived” with the reasons stating that Mr Croker’s application “states that the decision to dismiss on the ground of no jurisdiction was wrong as a matter of law. An appeal on this ground lies to the Supreme Court, and is not a basis for a section 68 application.” A summons for judicial review of the CTTT decision dismissing the proceedings in matter no. GEN 05/14570 in the Supreme Court was dismissed by Hoeben J on the ground that the CTTT lacked jurisdiction to entertain proceedings where orders were sought against the Commonwealth of Australia: Croker v Commonwealth of Australia & Anor [2005] NSWSC 994; (2005) 194 FLR 366 at [20]. This summons for judicial review is not relied upon as a vexatious proceeding.

4.13.2    The initial proceedings in the High Court

161    On 7 December 2005, Mr Croker then sought to issue a writ of summons against the Commonwealth in the High Court for unspecified relief with respect to the replacement cufflinks. Kirby J directed pursuant to r 6.07 of the High Court Rules 2004 (Cth) that the Registrar refuse to issue the proceeding without leave of a Justice. In March 2006, Heydon J refused leave for Mr Croker to issue a writ on the basis that the proposed proceedings were “an abuse of process, frivolous and vexatious”: An application by Croker [2006] HCATrans 75 (1 March 2006); see also An application by Croker [2006] HCATrans 599 (9 November 2006).

162    An application for leave to appeal by Mr Croker against the decision of Heydon J was refused on 9 November 2006 by Hayne and Crennan JJ on the ground that Mr Croker’s “written submissions raise no question of law which warrants consideration by this Court. There is no reason to doubt the correctness of the decision of Heydon J”: An application by Croker [2006] HCATrans 599 (9 November 2006).

4.13.3    The first Federal Court Cufflinks proceedings

163    On 19 December 2006, Mr Croker filed an application in the Federal Court (matter no. NSD2478/06) (the First Federal Court cufflinks proceedings). In those proceedings, Mr Croker sought damages in the sum of $100,000 “or other amount” in respect of his claim arising from the supply of the cufflinks. In recounting the history of these proceedings, Cowdroy J in Croker v Commonwealth of Australia [2008] FCA 452 at [17]-[20] explained that:

18.    By its letter dated 16 January 2007 the Commonwealth made an offer of settlement to Mr Croker. A further letter was sent to him on 31 January 2007 which indicated that an application would be made to the Court for security for costs.

19.    On 2 February 2007 a Notice of Offer of Compromise was made in the proceedings by the Commonwealth. The offer, made on a without prejudice basis, proposed a payment to Mr Croker in the sum of $307.26 comprised of the cost of the cufflinks ($50); the cost of replating the cufflinks ($132); and interest on the sum of $182, being the combined total of the cost of the cufflinks and their repair from the date of their purchase to the date of the offer. The offer proposed that each party pay its own costs.

20.    By his letter dated 7 February 2007 Mr Croker rejected the offer of compromise made by the Commonwealth on 2 February 2007. In such letter Mr Croker wrote:

Re: Liability – Quantum – Ludicrous offer – Rejection – Basic legal principals [sic]

In regards to the Commonwealth’s offer of compensation in your letter dated 2/2/2007. I have considered the Commonwealth’s offer and am of mind that it does not conform to the basic legal principals [sic] of compensation and consider the offer to be ludicrous.

The agency is liable in this matter, but has fails [sic] to quantify any reasonable loss or damage.

Therefore the offer is rejected and it is requested that the Commonwealth makes no further offer.

164    These proceedings were transferred to the then Federal Magistrates Court on 6 February 2007 by Stone J, and were renumbered matter no. SYG548/07 (the FMC cufflinks proceedings).

165    On 7 March 2007 the Commonwealth sought details of Mr Croker’s claim of $100,000 or other amount as referred to in the application filed in the proceedings to which there was apparently no response: Croker v Commonwealth of Australia [2008] FCA 452 at [22] (Cowdroy J).

166    On 23 March 2007, the Federal Magistrates Court ordered Mr Croker to produce documents relating to his income and financial resources and other costs orders as a precursor to an application for security for costs. No documents were ever produced as ordered: Croker v Commonwealth of Australia [2008] FCA 452 at [23] (Cowdroy J).

167    An application to the Federal Court for leave to appeal against the interlocutory orders of the Federal Magistrates Court was dismissed with costs in Croker v Commonwealth of Australia [2007] FCA 831 on 24 May 2007. In refusing leave to appeal, Edmonds J held at [5] that:

[Mr Croker], 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.

(Emphasis added.)

168    Following the filing by Mr Croker of an application for leave to appeal, the Commonwealth sought summary dismissal or an order for security for costs with respect to the proceedings in the Federal Magistrates Court. The Commonwealth also sought orders that Mr Croker not be permitted to continue the present proceedings or any further proceedings without leave of the Court. Mr Croker filed an application on 29 May 2007 for a stay in the Federal Magistrates Court “until the outcome of an application to the High Court of Australia” despite there being no application to the High Court on foot: Croker v Commonwealth [2008] FCA 452 at [27].

169    The application for a stay was refused in Croker v Commonwealth of Australia [2007] FMCA 1374. In that decision, Lloyd-Jones FM also declined the application for summary judgment but afforded Mr Croker the opportunity to re-plead his case, holding that the statement of claim contained a number of substantial defects (at [44]). However, his Honour did consider that it was appropriate to make the order for security for costs. In reaching that view, Lloyd-Jones FM took into account a number of factors including that (at [45]-[46]):

(1)    the set of $50 cufflinks the subject of the matter have had a long and expensive history for the Commonwealth;

(2)    the Commonwealth has tried on a number of occasions to provide a compromise to Mr Croker to settle his claim in order to ensure that no further costs and expenses are incurred which Mr Croker has declined for reasons he did not disclose;

(3)    the costs order made by Hoeben J in the Supreme Court relating to the same cufflinks remained unpaid; and

(4)    orders previously made in the proceedings had not been complied with.

170    Furthermore, Lloyd Jones FM accepted at [49] the Commonwealth’s submission that:

The application to this Court was filed by an individual with a propensity for suing the Commonwealth and for litigation generally. In the circumstances, the Commonwealth ought to have some protection due to its having to defend multiple claims.

171    Mr Croker did not provide security for costs, nor file any amended pleadings pursuant to the leave granted to him: Croker v Commonwealth of Australia [2008] FCA 452 at [29] (Cowdroy J).

172    An application for leave to appeal from the order for security for costs and the order refusing the stay were dismissed by Buchanan J in Croker v Commonwealth of Australia [2007] FCA 1593. In his reasons, Buchanan J found that Mr Croker’s affidavit in support of the application for leave to appeal failed to comply with the requirements under the Federal Court Rules for such an affidavit and found parts of the affidavit incomprehensible (at [9]).

173    With respect to Mr Croker’s application that the Federal Magistrates Court proceedings be stayed pending a challenge in the High Court of the earlier decision to refuse leave to appeal, Buchanan J held at [13] that:

I can see no merit in any suggestion that the hearing in the FMCA to deal with the notice of motion filed by the Commonwealth should have been stayed. The Federal Magistrate records that there was no evidence before him that any application in the High Court had been filed or would be filed.… In my view there is no reasonable prospect that Mr Croker could succeed in any appeal against Order (1) made on 14 August 2007 if leave to appeal were granted.

174    As to the application for leave to appeal against the order for security for costs, Buchanan J held at [18] that:

Mr Croker, in my view, is unable to show any error in the exercise of the Federal Magistrate’s discretion to order security for costs or the amount of such security. He deprived the FMCA of relevant material which might have been used to assess the extent, if any, of his impecuniosity. Moreover, for the same reason, no serious question arises in the present case of any substantial injustice being occasioned to Mr Croker by reason of the requirement to provide security for costs.

175    His Honour concluded at [23] that:

I am satisfied that there is no reasonable basis for the grant of leave to appeal in any respect and I will dismiss the application. Mr Croker’s failure to comply with the order of the FMCA made on 23 March 2007 [requiring production of his financial records] is a serious matter. If the case for rejecting his application for leave to appeal was not so clear cut I would have given serious consideration to deferring any consideration of the present application until that order had been complied with.

176    On 31 October 2007, Lloyd-Jones FM stayed the Federal Magistrates Court proceedings pending payment of security for costs, and ordered that the proceedings be dismissed if security was not paid by 16 November 2007. No payment was made by Mr Croker and on 6 March 2008, Lloyd-Jones FM made an order dismissing the proceedings with costs: see Croker v Commonwealth of Australia [2008] FCA 452 at [33] (Cowdroy J).

4.13.4    The second Federal Court Cufflinks proceedings: Croker v Commonwealth of Australia [2008] FCA 452

177    On 4 December 2007, Mr Croker filed an application in the Federal Court seeking damages in the sum of $200,000 based upon the same facts referred to in the First Federal Court Cufflinks proceedings. That application was dismissed by Cowdroy J in Croker v Commonwealth of Australia [2008] FCA 452.

178    The cause of action is set out at [35] of Cowdroy J’s decision and included that:

1. This is a Commonwealth consumer claim case by a citizen of the Commonwealth of Australia alleging a series of contraventions of Commonwealth consumer law and the uncalled for participation in formal proceedings to protest such unlawful contraventions.

…

3. Applicant seeks orders that the acts and omissions of the Respondent. intentionally [sic] and unlawfully contravened the laws of the Commonwealth of Australia and in retaliation for opposing such contraventions, appropriate relief, compensatory, punitive, aggravated and exemplary damages are sought.

…

179    The Commonwealth filed a notice of motion seeking orders that, absent leave of the Court, Mr Croker not continue the current proceedings or institute proceedings against the Commonwealth having the same subject matter. Alternatively orders were sought for summary dismissal or security for costs.

180    While mindful that the power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse of process, Cowdroy J found that the current proceedings could be so categorised (at [58]-[59]). In so finding, his Honour held that:

59. …[The proceedings] have been instituted solely for the purpose of circumventing the orders made in SYG 548 of 2007 [the FMC cufflinks proceedings]. 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.

…

61. Further the Court is mindful of the frivolous nature of the claim and of the fact that the respondent has been put to expense out of all proportion to any damages that could realistically be awarded in Mr Croker’s favour. Mr Croker has refused an open offer of settlement made at the conclusion of this hearing… As Mr Croker has been unable to quantify any loss, the offer was clearly reasonable. The frivolous nature of Mr Croker’s claim is exemplified in his letter dated 7 February 2007 set out above. Although it is not necessary to do so, the Court considers that grounds exist for the proceedings to be also dismissed… as vexatious and frivolous…

181    An application for leave to extend the time within which to file an application for leave to appeal the decision of Cowdroy J was refused by Rares J in Croker v Commonwealth of Australia [2008] FCA 972. In refusing leave, his Honour held at [2] that Cowdroy J “…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”. Mr Croker’s submission, that the grant of leave would be in the interests of justice, and that Cowdroy J’s decision constituted a gross miscarriage of justice, were rejected as lacking any substance (at [19]).

182    Rares J further found at [6] that:

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.

183    Further, his Honour found that:

23. These proceedings… 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.

184    His Honour concluded at [27]-[28] that these proceedings “were the plainest abuse of the process of the court… 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”. Orders were also made precluding the applicant from filing any further proceedings in the Federal Court or the Federal Magistrates Court relating to his claims with respect to the cufflinks absent leave unless security for costs is provided and the applicant first paid the costs ordered to be paid by him in the FMC cufflinks proceedings and the First and Second Federal Court cufflinks proceedings.

185    In December 2008, a costs assessment was issued consequent upon the costs orders made by Hoeben J in Croker v Commonwealth of Australia & Anor [2005] NSWSC 994; (2005) 194 FLR 366 (see at [160] above). In February 2009, Mr Croker filed a summons in the District Court seeking leave to appeal from the decision of the costs assessor. That application was struck out in April 2009 by Balla DCJ with indemnity costs on the basis that the defendant was in fact seeking to challenge the costs order itself rather than the assessment, and the application was frivolous, vexatious and an abuse of process.

4.13.5    Bankruptcy notice arising from unpaid costs orders

186    The Official Receiver issued a bankruptcy notice on 28 June 2010, identifying $51,705.61 owed by Mr Croker due to six separate costs orders relating to cufflink proceedings in the Federal Court, Federal Magistrates Court, Supreme Court and District Court. Mr Croker sought to have the bankruptcy notice set aside in the Federal Court on grounds including that Mr Croker had a counter-claim equal to or exceeding the total amount claimed in the bankruptcy notice, that the notice is defective because it does not claim interest, that the notice is defective because the address shown for the creditor is a post office box, and that the notice is defective because the respondent has failed to act as a model litigant. On 22 September 2010, Foster J dismissed the application on the basis that Mr Croker failed to make out any case that the notice should be set aside: Croker v Commonwealth of Australia; In the Matter of Croker [2010] FCA 1031.

187    In the Federal Magistrates Court, the Commonwealth sought a sequestration order against the estate of Mr Croker. Driver FM allowed the order, holding that “I am satisfied that Mr Croker did commit the act of bankruptcy alleged in the petition, and I am also satisfied with the proof of the other matters, at which s.51(1) of the Bankruptcy Act requires proof” (Commonwealth of Australia v Croker [2010] FMCA 852 at [27]). Driver FM also observed that “Mr Croker’s opposition appears to raise grounds identical to the first, second and fourth grounds regarding the validity of the Bankruptcy Notice that were argued before Foster J… Those three grounds have already been determined by Foster J” (at [17]-[18]).

188    Mr Croker sought to appeal the decisions of Foster J and Driver FM in the Full Court of the Federal Court. On 17 November 2010, Emmett J ordered that two appeals be heard by the same Full Court. Mr Croker filed a notice of a Constitutional matter in the appeal from the decision of Foster, substantially the same as the notice of a Constitutional matter filed in the present proceedings. At [23] in Croker v Commonwealth of Australia [2011] FCAFC 25, the Full Court held:

To the extent that the notice seeks to identify Constitutional issues which are said to arise on the appeal, it is unintelligible. Doing the best we can, we understand Mr Croker to be alleging that the Trade Practices Act 1974 (Cth) has, in some way, been “subverted” by decisions made in this Court, thereby rendering it invalid.

189    With reference to the appeal from the decision of Foster J, the Full Court held that the trial judge was correct to reject Mr Croker’s application (at [24]). Similarly, with reference to the decision of Driver FM, the Full Court held that the Federal Magistrate’s reasons for decision disclosed no appellable error (at [45]). The Full Court also noted that “[n]o written submissions were filed by Mr Croker in support of this appeal. His oral submissions did not deal with the grounds on which he sought to impugn the Federal Magistrate’s decision” (at [44]).

190    Mr Croker applied to stay the decision of the Full Court pending determination of his application for special leave to appeal to the High Court. Flick J dismissed the motion on 1 April 2011 on the grounds that the application for special leave to appeal “has little (if any) prospects of success” (Croker v Commonwealth of Australia [2011] FCA 312 at [10]). Specifically, his Honour held at [11]-[14]: