Clayton Robert Croker v Hutchison 3G Australia Pty Limited; Clayton Robert Croker v Hutchison 3G Australia Pty Limited

[2005] NSWSC 1242

CITATION:	Clayton Robert Croker v Hutchison 3G Australia Pty Limited; Clayton Robert Croker v Hutchison 3G Australia Pty Limited [2005] NSWSC 1242
HEARING DATE(S):	8 September 2005
JUDGMENT DATE :	9 September 2005
JUDGMENT OF:	Latham J
DECISION:	The appeal is dismissed. The appellant is to pay the respondent’s costs on this appeal.

CATCHWORDS:	Security for costs - Discretionary factors.
CASES CITED:	House v The King (1936) 55 CLR 499 Croker v Sydney Institute of TAFE [2003] FCA 942 Equity Access Limited v Westpac Banking Corporation and Ors (1989) ATPR 40-972 KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FRC 189 Bell Wholesale Company Pty Limited v Gates Export Corporation (No 2) (1994) 2FRC
PARTIES:	Plaintiff - Clayton Robert Croker Defendant - Hutchison 3G Australia Pty Limited
FILE NUMBER(S):	SC 30008/2005; 30012/2005
SOLICITORS:	Plaintiff - Self represented Defendant - Ms C Mullins

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

9 SEPTEMBER 2005

O30008/05 - CLAYTON ROBERT CROKER v HUTCHISON 3G AUSTRALIA PTY LIMITED
O30012/05 - CLAYTON ROBERT CROKER v HUTCHISON 3G AUSTRALIA PTY LIMITED

JUDGMENT

1 LATHAM J: The appellant, Clayton Robert Croker appeals against a decision of Malpass AsJ delivered on 28 July 2005. That decision was a dismissal of notices of motion filed by the appellant seeking a review of an order made by Assistant Registrar Howe requiring the appellant to provide security for costs in respect of proceedings in this court by the appellant against the respondent. I refer to notices of motion in the proceedings SC 30008/05 and 30012/05.

2 The proceedings have a somewhat tortuous history. I am not concerned with the merits of the appellant’s case before the Consumer Trade and Tenancy Tribunal which began this sorry saga of litigation. I am only concerned with the correctness of the decision from which the appellant appeals.

3 In order to succeed on this appeal the appellant must demonstrate that Malpass AsJ made findings of fact that were so flawed that appellate intervention is justified or that insofar as Malpass AsJ independently exercised his discretion to make the orders complained of, that discretion miscarried in the sense identified in House v The King (1936) 55 CLR 499.

4 The findings of fact made by Malpass AsJ were:

1. The address for service provided by the appellant contained a number of businesses, including the Darlinghurst Post Office.

2. The appellant does not live at or occupy any part of those premises.

3. In other proceedings, including Croker v Sydney Institute of TAFE [2003] FCA 942 the same address for service has been provided by the appellant and has been found to be incorrect and in breach of court rules relating to addresses for service.

4. The address for service provided by the appellant does not comply with the requirements of this Court’s rules.

5. The appellant knows that the address for service does not comply with the rules.

6. The appellant’s deliberate misstatement of his address for service was made with the intention to deceive.

5 The last finding of fact was an inference drawn from the combination of facts one to five. None of these findings of fact were disputed by the appellant, with the possible exception of the inference drawn as six above. However, I regard that inference as overwhelming, particularly given the matters canvassed at length by Bennett J in Croker v Sydney Institute of TAFE.

6 As to the exercise of the discretion to make an order for security for costs under the rules as they then were, it is convenient to be reminded of the factors relevant to the exercise of that discretion. They include relevantly:

1. Whether the appellant’s claim in the proceedings brought in this court is bona fide and has reasonable prospects of success.

2. The risk that the appellant cannot satisfy a costs order.

3. Whether the power is being used oppressively on the part of the respondent.

4. Whether the appellant’s impecuniosity arises out of the respondent’s alleged misconduct towards the appellant; and

5. Whether the order would unduly stultify the appellant’s ability to pursue the proceedings.

7 As to these discretionary factors see Equity Access Limited v Westpac Banking Corporation and Ors (1989) ATPR 40-972 and KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FRC 189. The decision of Malpass AsJ refers to these discretionary factors, albeit briefly, at paragraph 26.

8 I can discern no basis for asserting that Malpass AsJ took into account any irrelevant matter or failed to take into account a relevant matter or acted on a wrong principle or mistook the relevant facts or acted unreasonably. My own review of the history of the proceedings confirms that they are hopeless, that is, they have no reasonable prospects of success. The appellant makes no secret of the fact that he has numerous outstanding unsatisfied costs orders against him. The respondent is doing no more than protecting its legitimate financial interest in defending costly litigation brought against it by the appellant. The appellant’s impecuniosity has never been asserted as arising out of the provision of a defective mobile handset by the respondent in June of 2003. That alleged conduct on the part of the respondent lies at the root of these proceedings.

9 The appellant does rely on the stultifying effect of the costs order. However, the onus is on the appellant to establish that he is without the means to pursue the litigation: see Bell Wholesale Company Pty Limited v Gates Export Corporation (No 2) (1994) 2FRC. Malpass AsJ rightly points out that the appellant gave no evidence as to his means.

10 In short, the appellant has failed to demonstrate any error on the part of Malpass AJA that would warrant the intervention of the Court. Accordingly, the appeal is dismissed. The appellant is to pay the respondent’s costs on this appeal.

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