Clayton Robert Croker v Commonwealth of Australia

[2011] HCASL 91

CLAYTON ROBERT CROKER
v
COMMONWEALTH OF AUSTRALIA
[2011] HCASL 91
S113/2011

1. The applicant seeks special leave to appeal against orders of the Full Court of the Federal Court of Australia (Siopis, Tracey and Gilmour JJ).  The Full Court dismissed the applicant's appeals (heard simultaneously) against a decision by Foster J dismissing the applicant's application to have a bankruptcy notice set aside and a decision by Driver FM to make a sequestration order against the estate of the applicant.  The applicant has also filed a summons seeking an extension of "the time for compliance … with the requirements of the commission of bankruptcy and sequestration order" to the time at which this Court determines the application for special leave.

2. As the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

3. The High Court of Australia celebrated the centenary of its founding in 2003.  Cufflinks bearing the Court's crest were manufactured and offered for sale to mark the occasion.  The applicant purchased a set of cufflinks and was dissatisfied with their quality.  Not satisfied with the responses he received to complaints about their quality, the applicant commenced litigation.  The applicant had made against him six separate costs orders arising out of the litigation in the Federal Magistrates Court, the Federal Court, and the Supreme and District Courts of New South Wales.  In aggregate, costs of $51,705.61 have been awarded against the applicant.

4. On 2 July 2010, the Official Receiver served a bankruptcy notice on the applicant in the prescribed form.  On 22 September 2010, Foster J dismissed an application to set aside the bankruptcy notice.  His Honour rejected the applicant's claim that he had a counter‑claim, set‑off or cross demand equal to or exceeding the total amount claimed in the bankruptcy notice as the judgment debt.  His Honour also rejected the applicant's submissions that the bankruptcy notice was defective in various ways, including the submission that the Commonwealth had failed to act as a model litigant in accordance with a direction promulgated by it under the Judiciary Act 1903 (Cth).

5. On the following day, the Commonwealth filed a creditor's petition in the Federal Magistrates Court.  On 2 November 2010, Driver FM made a sequestration order against the estate of the applicant.  His Honour rejected submissions repeating the points raised before Foster J.  His Honour also held that other grounds of the applicant's opposition to the making of the order lacked substance or were unintelligible, and that there had been no evidence of fraud or collusion or miscarriage of justice in relation to any of the judgment debts in the proceedings before Foster J.  Finally, his Honour rejected submissions that the matter involved a constitutional issue and that the sequestration proceedings were commenced prematurely.

6. The Full Court unanimously dismissed the appeals from the decisions of Foster J and Driver FM.  In relation to the decision of Driver FM, the Court observed that no written submissions were filed in support of the appeal and that the oral submissions did not address the grounds that the applicant sought to advance, which lacked intelligibility in any event.

7. The applicant's draft notice of appeal does not set out clear and intelligible grounds of appeal and the applicant's written submissions develop no questions of law such as would warrant a grant of special leave.  We see no reason to doubt the correctness of the conclusions reached by the courts below.  An appeal to this Court would enjoy no prospect of success.  The summons should be dismissed as futile.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application and the summons.

K.M. Hayne
7 June 2011 S.M. Crennan