FEDERAL COURT OF AUSTRALIA
Croker, in the matter of Croker [2019] FCA 359
File number: NSD 7 of 2019 Judge: LEE J Date of judgment: 18 March 2019 Catchwords: PRACTICE AND PROCEDURE – vexatious litigant - application for leave by person subject to a vexatious proceedings order to commence a new proceeding – applicant required to file an affidavit which identifies all other proceedings the applicant has instituted in any Australian court or tribunal – whether substantial compliance established – Court may receive as evidence any record of evidence given in another proceeding involving the applicant – failure to substantially comply with s 37AR(3) of the Federal Court of Australia Act 1976 (Cth) – application dismissed Legislation: Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37AO, 37AR, 37AS
Cases cited: Gargan, in the matter of Gargan [2018] FCA 871
Garrett, in the matter of Company One [2016] FCA 703
Soden v Croker (No 2) [2016] FCA 15; (2016) 334 ALR 540
Attorney General of New South Wales v Croker [2010] NSWSC 942
Date of hearing: 12 March 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person ORDERS
NSD 7 of 2019 CLAYTON CROKER
Applicant
JUDGE:
LEE J
DATE OF ORDER:
18 MARCH 2019
THE COURT ORDERS THAT:
1.The application for leave to institute proceedings is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
It is an exercise in understatement to describe Mr Croker as an indefatigable litigant. He has the misfortune to be the subject of vexatious proceedings orders made in both the Supreme Court of New South Wales (Attorney General of New South Wales v Croker [2010] NSWSC 942 (Fullerton J)) and in this Court (Soden v Croker (No 2) [2016] FCA 15; (2016) 334 ALR 540 (Perry J)).
Apparently undaunted by persistent (although not entirely uniform) failure in his quixotic litigious endeavours, he now wishes to bring a proceeding for damages and the imposition of a pecuniary penalty against an art school, alleging discrimination on the basis of disability under the Disability Discrimination Act 1992 (Cth). For reasons which I will explain, there is no need to divagate and dwell on the details of the proposed claim.
Given the vexatious proceedings order made under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (Act), Mr Croker needs leave pursuant to s 37AR(2) of the Act for to institute the proposed proceeding. Section 37AR is in the following terms:
Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.
(3)The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
Although the interlocutory application was unclear in its terms, I obtained clarification from Mr Croker that what was sought was a grant of leave pursuant to this section of the Act. This necessarily involved Mr Croker being required to comply with the requirements of making such an application. The central requirement is the filing of an affidavit addressing specific matters. As can be seen, the requirements of s 37AR(3) are expressed in mandatory terms. The reason is obvious and is demonstrated by s 37AS(1) of the Act, which provides that a judge may make an order dismissing an application for leave to institute a proceeding, if the judge considers the affidavit does not substantially comply with subsection 37AR(3). This dismissal may occur without an oral hearing (irrespective as to whether the applicant consents: see s 37AS(3)). Given the statutory scheme, it follows that there is a need to apprise the judge hearing the application of, among other things, the correct details of all the other proceedings the applicant has instituted in “any Australian court or tribunal”, whenever those proceedings were commenced.
Needless to say, it makes sense that s 37AS(1) of the Act is couched in terms of “substantial compliance” given the very general nature of the further mandatory requirement to disclose all relevant facts about the application, whether supporting or adverse to the application: see s 37AR(3)(c). Additionally, it seems to me a relatively minor (and hence non-substantive) error in the listing of all proceedings may, depending upon all the circumstances, still amount to substantial compliance with the statutory requirements.
What has occurred here, however, is quite different. It is evident that Mr Croker has not even attempted to list all other proceedings he has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of s 37AR. The relevant affidavit lists 93 cases since 1999. However, as it turns out, as Perry J found in Soden v Croker (No 2) at 595-596 [223]:
… (n)otwithstanding 33 proceedings which are not vexatious or relied upon as such, the fact remains that over the last 17 years, Mr Croker has commenced or conducted approximately 103 “proceedings” (in the sense defined in the Act) which were vexatious. In this regard, it will be recalled that proceedings for these purposes includes, for example, applications for leave to appeal or for an extension of time within which to appeal, such as in the second set of social security proceedings regarding the Disability Support Pension and Education Supplement (see at [115]-[119] above) and in relation to the subpoenas sought to be issued to the NSW Police and ATO in the Tenancy proceedings (see at [46] and [48] above). They also include the request by Mr Croker in these proceedings that the Registrar of the Federal Court obtain a copy of a Local Court file relating to criminal charges against a former practitioner who was the solicitor on the record in a number of the cases involving Mr Croker in evidence before me: Soden v Croker [2015] FCA 321.
It appears this finding was based on evidence relied upon by the Registrar in the proceeding before Perry J, referred to at 544 [5] of her Honour’s judgment.
Section 37AT(2) of the Act provides that at the hearing of an application of the present type the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in which the applicant was a party. When this matter first came into my docket, it seemed to me likely that I should have regard to evidence supporting the finding of Perry J as to the correct number of previous proceedings (at least to the date of her Honour’s judgment). I then listed the matter for an interlocutory hearing, in part, for the purpose of indicating to Mr Croker that I intended to have regard to a document which I then marked as Exhibit A on the application (which, for ease of reference, I will annex as a schedule to these reasons).
Exhibit A chronicles the full extent of Mr Croker’s remarkable attraction to disputation in an array of courts and tribunals during the period to which it relates. The difference between the orgy of litigious activity referred to in Exhibit A and what was listed in the s 37AR(3) affidavit is evident. This is not to say that the list of 93 cases since 1999 in the affidavit does not, by itself, demonstrate excessive litigious zeal, but the fact is, the listing in Mr Croker’s affidavit is inaccurate, and materially inaccurate as judged against what was required to be listed.
This is not some sort of “technical” point. It is not for the Court, dealing with an application for leave of this kind, to have to ferret around to obtain an accurate record from courts and tribunals. As Mortimer J observed in Gargan, in the matter of Gargan [2018] FCA 871 at [17]:
The purpose of the requirement in s 37AR(3) is an important one. It is by this affidavit evidence that the Court is, at least in part, to assess whether the proposed proceeding for which leave is sought should be characterised as a vexatious proceeding. A failure by an applicant fully and frankly to disclose all previous proceedings, and to do so in a way which enables the Court to assess that history of litigation against the current application, adversely affects the Court’s ability to carry out the task required under Div 3 of Pt VAAA of the [Act].
I thought it appropriate to bring Exhibit A to the attention of Mr Croker and ask whether he agreed with its accuracy or indicated whether he disputed its contents. I also wished to obtain an explanation of how he approached the task of listing all relevant proceedings. Not unreasonably, he was not prepared to accept on the spot that the listing was accurate in all respects without time being afforded to allow him to study it in detail. Mr Croker’s position was expressed as being that: “I would say confidently that it would be – majority of it – substantially correct” (at T6.41-42). Having said that, to have granted an adjournment and then received further submissions would have been inimical to the need to resolve applications of this type with celerity. Given the provenance of Exhibit A, there is no reason why I should not proceed on the basis that Exhibit A is accurate (as is the finding of Perry J extracted above).
Importantly, Mr Croker implicitly confirmed the list he provided must by definition be incomplete as he told me, in effect, that he approached the task by reference to a search of relevant court records on the internet, through the database. Such an approach is wholly inadequate. It delimits the cataloguing of cases to internet listings of unreported judgments (which are limited both temporally and as to the tribunals which publish reasons). Subsection 37AR(3) does more than merely requiring an applicant to use “best endeavours” to put relevant material before the Court on the application for leave. It requires the provision of accurate and materially complete information to allow the Court to discharge its duty to consider the application according to law without the benefit of further material or submissions. It is central to the way Part VAAA operates in relation to those against whom vexatious proceedings orders have been made. Insofar as the subsection requires objectively verifiable information to be listed, it should be done accurately. In my view, what has occurred falls considerably short of substantial compliance with the subsection.
Section 37AS(1) provides that an order dismissing an application under section 37AR may be made if the Court or a judge considers the affidavit does not substantially comply with subsection 37AR(3); subsection 37AS(2) provides that the Court or judge must make an order dismissing an application under section 37AR if the Court or judge “considers the proceeding is a vexatious proceeding”.
What amounts to a “vexatious” proceeding was explained comprehensively by Charlesworth J in Garrett, in the matter of Company One [2016] FCA 703 at [8] to [20]. Although it might be said, on an impressionistic basis, that the proposed proceeding has apparent signs of being a new manifestation of at least some of the prior obsessions which formed part of the background to the vexatious proceedings order made against Mr Crocker, it is unnecessary for me to form a view on the s 37AS(2) question. This is because I consider, in the circumstances of this case, that the failure to comply with s 37AR(3) in a substantive sense is sufficiently important so as to be fatal to the grant of leave. The application for leave must be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 18 March 2019
SCHEDULE
IN THE FEDERAL COURT
OF AUSTRALIA
Warwick Soden
(in his capacity as
Registrar of the
Federal Court of Australia)
AND
Clayton Robert Croker
INDEX AND SUMMARY PREPARED ON BEHALF OF THE APPLICANT
Classification of proceedings and other parties to proceedings
1) “Tenancy proceedings”
a)Mr Perks, page 5 of summary, Vol 1.1-1.4 of Exhibit
b)Commissioner of Taxation (subpoena), page 6 of summary, Vol 1.5-1.7 of Exhibit
c)Commissioner of Police (subpoena), page 7 of summary, Vol 1.8—1.10 of Exhibit
d)Commissioner of Taxation (costs proceedings arising from subpoena issued in proceedings against Perks), page 9 of summary, Vol 1.11-1.13 of Exhibit
e)Commissioner of Taxation (bankruptcy applications – Supreme Court costs), page 11 of summary, Vol 1.14-1.16 of Exhibit
f)Commissioner of Taxation (bankruptcy applications – High Court costs), page 12 of summary, Vol 1.17-1.20 of Exhibit
g)Commissioner of Taxation (defamation), page 13 of summary, Vol 1.21-1.23 of Exhibit
h)Commissioner of Taxation (bankruptcy applications – defamation costs), page 17 of summary, Vol 1.24 of Exhibit
i)Commissioner of Taxation (ADJR Act proceedings), page 18 of summary, Vol 1.25-1.26 of Exhibit
j)Commissioner of Taxation (damages re bankruptcy attempts), page 20 of summary, Vol 1.27-1.30 of Exhibit
2) “Dental proceedings”
a)Mr Challoner, page 22 of summary, Vol 1.31-1.34 of Exhibit
b)Deputy Registrar High Court (AD(JR) Act proceedings) page 24 of summary, Vol 1.35 of Exhibit
c)Deputy Registrar High Court (Interlocutory application re cost of photocopying), page 26 of summary, Vol 1.36-1.38 of Exhibit
d)Deputy Registrar High Court (Appeal), page 27 of summary, Vol 1.39-1.42 of Exhibit
3) “Cufflink proceedings”
a)High Court of Australia (First CTTT proceedings), page 30 of summary, Vol 2.1 of Exhibit
b)High Court of Australia (Second CTTT proceedings), page 30 of summary, Vol 2.2-2.4 of Exhibit
c)Commonwealth of Australia (Application for writ in High Court), page 31 of summary, Vol 2.5-2.6 of Exhibit
d)Commonwealth of Australia (First Federal Court proceedings), page 33 of summary, Vol 2.7-2.9 of Exhibit
e)Commonwealth of Australia (Second Federal Court proceedings), page 36 of summary, Vol 2.10-2.11 of Exhibit
f)Commonwealth of Australia (bankruptcy notice), page 38 of summary, Vol 2.12-2.16 of Exhibit
4) “Credit proceedings”
a)Commonwealth Bank, page 41 of summary, Vol 2.17-2.20 of Exhibit
5) “Mobile phone proceedings”
a)Phillips Electronics and Others, page 43 of summary, Vol 2.21-2.28 of Exhibit
b)Hutchinson and Others (First CTTT proceedings), page 47 of summary, Vol 2.29-2.30 of Exhibit
c)Hutchinson and Others (Second CTTT proceedings), page 47 of summary, Vol 2.31-2.34 of Exhibit
d)Hutchinson and Others (Third CTTT proceedings), page 49 of summary, Vol 2.33-2.34 of Exhibit
6) “Credit Card proceedings”
a)Bi-Lo Supermarket and Commonwealth Bank (First CTTT proceedings), page 51 of summary, Vol 2.35 of Exhibit
b)Bi-Lo Supermarket and Commonwealth Bank (Second CTTT proceedings), page 51 of summary, Vol 2.36 of Exhibit
7) “Jewellery proceedings”
a)Angus and Coote, page 51 of summary, Vol 2.37-2.42 of Exhibit
8) “Discrimination proceedings”
a)State of NSW (Sydney Institute of TAFE), page 55 of summary, Vol 2.43-2.50 of Exhibit
9) “Detinue proceedings”
a)Mr Ewen, page 59 of summary, Vol 3.1-3.3 of Exhibit
10) “Social Security proceedings”
a)Department of Families and Community Services (Advance on disability support pension), page 61 of summary, Vol 3.4-3.7 of Exhibit
b)Department of Employment and Workplace Relations (Disability support pension), page 64 of summary, Vol 3.8-3.14 of Exhibit
c)Department of Employment and Workplace Relations (Newstart allowance, entry payment, activity agreement), page 68 of summary, Vol 3.15-3.18 of Exhibit
d)Department of Employment and Workplace Relations (Newstart allowance, activity agreement with Maxnetwork), page 71 of summary, Vol 3.19-3.21 of Exhibit
e)Department of Employment and Workplace Relations (Education Supplement, first proceedings), page 73 of summary, Vol 3.22-3.23 of Exhibit
f)Department of Families, Housing, Community Services and Indigenous Affairs (Education Supplement, second proceedings), page 74 of summary, Vol 3.24
g)Minister for Finance and Deregulation(act of grace payment, first proceedings), page 75 of summary, Vol 3.25-3.26
h)Minister for Finance and Deregulation (act of grace payment, second proceedings), page 77 of summary, Vol 3.27-3.30
i)Department of Employment and Workplace Relations (Higher Education Fund), page 80 of summary, Vol 3.31
11) “HREOC proceedings”
a)Human Rights and Equal Opportunity Commission, page 81 of summary, Vol 3.32 of Exhibit
12) “Victims Comp. Proceedings”
a)Victims Compensation Fund Corporation (First proceedings), page 82 of summary, Vol 3.33-3.36 of Exhibit
b)Victims Compensation Fund Corporation (Second proceedings), page 83 of summary, Vol 3.37-3.40 of Exhibit
13) “Miscellaneous CTTT proceedings”
a)Pellini, page 84 of summary, not exhibited
b)Stewart, page 84 of summary, Vol 3.41 of Exhibit
c)Broad Stitches, page 84 of summary, Vol 3.42 of Exhibit
14) “Vexatious Proceedings Act”
a)Attorney General of New South Wales, page 85 of summary, Vol 3.43-3.44
Summary of proceedings
Proceedings marked * are not relied upon as vexatious proceedingsTENANCY PROCEEDINGS
1.1 Croker v Perks*
Residential Tenancies Tribunal proceedings number 98/36532
Commenced 20/11/98
Decided 4/12/98
T.Cohen (Member)
Mr Croker seeks terms of agreement and premises condition report to stop unlawful eviction.
Tribunal finds the premises operate as a boarding house and the Tribunal has no jurisdiction.
1.2 Croker v Perks*
Residential Tenancies Tribunal proceedings number 98/39116
Commenced 17/12/98
Decided 18/12/98
R.Haertsch (Deputy Registrar)
Seeking to vary and set aside order in above proceedings RTT 98/36532.
Dissatisfaction with order is not a ground to vary or set aside. Section 110 applications under the Residential Tenancies Act are not reviews of decisions. Section 107 provides for appeals to Supreme Court on matters of law.
1.3 Croker v Perks
Supreme Court proceedings number 30003/1999
Commenced 01/99 (summons)
03/99 (amended summons)
Decided 14/07/99
[1999] NSWSC 752, Justice Barr
Mr Croker seeks orders that personal property be returned, set aside RTT order, $100 000 and damages. Residential Tenancies Act does not apply to a tenancy agreement if the tenant is a border or lodger (s.6). Supreme Court has no power to enquire into the process by which the Tribunal decided to accept the evidence before it that the premises were occupied as a boarding house. Plaintiff makes various assertions against defendant, no substance to any. Summons dismissed with costs.
1.4 Croker v Perks
Court of Appeal proceedings number 40556/99
Commenced 21/07/99 (notice of appeal without appointment)
15/10/99 (notice of appeal with appointment)
Decided 27/4/00
Registrar Irwin
Appeal from decision of Justice Barr in [1999] NSWSC 752 above. Registry first queries whether need leave to appeal, if so need to file application for leave and extension of time to seek leave. Also out of time and problem with how damages are identified. Respondent files motion seeking to have appeal dismissed as incompetent. Registrar strikes out as incompetent. Each party pay own costs of appeal and the motion.
Commissioner of Taxation (Subpoena)
1.5 Croker v Perks*
Supreme Court proceedings number 30003/99
Commenced 02/02/99 (subpoena issued)
Determined 01/04/99
[1999] NSWSC 296, Justice Dunford
In course of the appeal to the Supreme Court from the decision of the RTT, Mr Croker issues subpoena to ATO. When subpoena not complied with Mr Croker files motion seeking compliance. ATO meanwhile objects to production on basis of statutory immunity and files motion to set subpoena aside. Justice Dunford sets aside the subpoena to ATO and dismisses Mr Croker’s ‘notice to produce’, with costs.
1.6 Croker v Commissioner of Taxation
Court of Appeal proceedings number 40247/99
Commenced 9/4/99 (holding summons)
30/6/99 (summons for leave to appeal)
Determined 27/9/99
Justice Sheller and Justice Stein
Mr Croker appeals decision of Justice Dunford to dismiss subpoena directed to ATO.
Appeal dismissed with costs.
“An appeal in this matter has no prospects of success” at [9].
1.7 Croker v Commissioner of Taxation
High Court proceedings number S186/99
Commenced 22/10/99
Determined 17/3/00
HCA Transcripts S186/99, Justice Gummow, Justice Kirby
Application for special leave to appeal to the High Court from decision of Court of Appeal dismissing appeal from Justice Dunford’s decision re ATO subpoena.
“Any 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 which is referred to at first instance by Justice Dunford and later by reference in the judgment of Justice Sheller in the New South Wales Court of Appeal. Accordingly special leave to appeal is refused.”
Commissioner of Police (Subpoena)
1.8 Croker v Perks*
Proceedings number 3003/99
Commenced 02/02/99 (subpoena issues)
Determined 20/4/99
Unreported judgment of 20/04/99, Justice Adams
In course of appeal from RTT (above) Mr Croker issues subpoena to Police. Police comply in part. Mr Croker files notice of motion seeking that the subpoena be complied with in full. Justice Adams makes order setting subpoena to NSW Police aside, in part. Paragraphs (a) and (c) lack a legitimate forensic purpose. No order as to costs. Mr Croker fails to attend hearing despite being present when matter fixed for hearing.
1.9 Croker v Commissioner of Police
Court of Appeal proceedings number 40303/99
Commenced 28/4/99 (holding summons)
21/7/99 (summons for leave to appeal)
Determined 23/11/99
Unreported judgment of 23/11/99, Justice Handley
Appeal from decision of Justice Adams which quashed paragraphs (a) and (c) of subpoena. By consent, application dealt with on the papers in chambers. Summons for leave to appeal dismissed with costs.
“In cases such as this the Court would be most reluctant to grant leave to appeal even if it thought that the proposed appeal raised arguable questions for its consideration. In the present case the proposed appeal does not appear to be reasonably arguable and indeed in my view the judgment under challenge was correct” at [3].
1.10 Croker v Commissioner of Police
High Court proceedings number S236/99
Commenced
Determined 26/5/00
Justice Gaudron, Justice Gummow
Application for special leave to appeal from decision of Justice Handley.
“…there is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal.” Costs
…..
Commissioner of Taxation (Costs proceedings arising from subpoena issued in proceedings against Perks)
1.11 In the matter of cost applicant Commissioner of Taxation v Cost
Respondent Clayton Croker
Supreme Court Cost Assessment File Number C/L 91488/00
Supreme Court proceedings number 91448/00
Commenced 14/8/00
Determined 2/11/00
Greg Walsh, costs assessor
Costs assessment arising from costs order made in favour of the Commissioner of Taxation in Supreme Court and Court of Appeal subpoena matters.“The submission made by the respondent, with the greatest of respect, is nonsensical…such a submissions is completely wrong at law and makes no sense.”
On 24/11/00 Mr Croker then applies to have determination of the costs assessor reviewed by a costs review panel. On 17/1/01 advised that the application cannot proceed because Mr Croker has failed to comply with s.208KA(5) of the Legal Profession Act which requires 7 days notice be given to the other side before applying for review.
1.12 Croker v Commissioner of Taxation
Supreme Court Proceedings Number 10270 /01
Commenced 31/1/01 (summons)
12/3/01 (amended summons)
Determined 21/3/01
[2001] NSWSC 188, Master Malpass
Mr Croker seeks orders dismissing determination of costs assessor. Other orders sought include order that the respondent pay damages for intimidation of the applicant.Grounds relied upon are largely irrelevant. “…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” at [8]. Dismissed with costs.
1.13 Croker v Commissioner of Taxation
Court of Appeal proceedings number 40272 of 2001
Commenced 24/4/01 (holding summons)
24/7/01 (ordinary summons for leave to appeal)
Determined 23/11/01
Justice Priestley and Justice Heydon.
Application for leave to appeal decision of Master Malpass. Application dismissed with costs.29/11/01 Mr Croker files a notice of motion (after application had been dismissed) seeking orders that the Full Court of the Supreme Court hear an appeal from the determination of the Court of Appeal of 23/11/01. Also seeks $200 000 in compensatory damages. Notice of motion dismissed by consent on 25/2/02.
(Costs orders made against Mr Croker and in favour of the Commissioner of Taxation led to attempts by the Commissioner to issue bankruptcy notices against Mr Croker. These attempts led to further litigation between the parties as set out on the following pages.)
…..
Commissioner of Taxation (Bankruptcy applications by Commissioner arising from costs orders against Mr Croker in the Supreme Court proceedings)
In original proceedings against Perks, Mr Croker caused a subpoena to be issued to the Commissioner of Taxation. Led to proceedings in the Supreme Court ([1999] NSWSC296), Court of Appeal (27/09/99) and High Court (17/03/00).
Costs orders made against Mr Croker in the Supreme Court and Court of Appeal proceedings gave rise to attempts by the Commissioner to issue bankruptcy notices against Mr Croker. These notices were litigated in the Federal Magistrates Court ([2002] FMCA 128), Federal Court ([2002] FCA 1432) and High Court ([2003] HCATrans 542) as follows.
Costs order made against Mr Croker in the High Court proceedings (17/03/00) led to separate proceedings in the Federal Court ([2002] FCA 1157), Full Federal Court ([2003] FCAFC 23 and [2003] FCAFC 66) and High Court ([2003] HCATrans 542) as follows further below.
Not exhibited Commissioner causes bankruptcy notice to issue arising
from costs orders made against Mr Croker in Supreme Court
proceedings. Mr Croker challenges the bankruptcy notice.
On 14 May 2002 Registrar Hedge sets aside bankruptcy
notice and orders Commissioner to pay costs of $100 to Mr
Croker.
(Summary taken from decision of FM Driver below)
1.14 Croker v Commissioner of Taxation
FMC proceedings number SZ168/02
Commenced11/06/02
Determined 25/06/02
[2002] FMCA 128, FM Driver
Mr Croker seeks an extension of time to review Registrar’s decision re costs (application for review filed 28 days after decision and rules require filing within 21 days). On application for review Mr Croker seeks to set aside costs order, alternate costs order, order restraining Deputy Commissioner of Taxation from issuing further bankruptcy notice and damages of $350 000. FM Driver considers explanation for delay, what the interests of justice require and whether Mr Croker’s application discloses arguable case.“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” at [10]. “It does seem however a tenuous proposition that those matters could be properly ventilated in a simple review application” at [11]. “I conclude therefore that the applicant has not advanced an arguable case in support of his application” at [16]. Application dismissed and Mr Croker to pay costs.
1.15 Croker v Commissioner of Taxation
Federal Court proceedings number N710/02
Commenced
Determined 12/11/02
[2002] FCA 1432, Justice Madgwick
Appeal from decision of FM Driver in [2002] FMCA 128.
“It follows that, although the matter was expressed in terms of arguability of the point, the proper conclusion is that the appellant had no reasonable prospects of success in upsetting the costs order made by the Registrar, and that Federal Magistrate Driver was correct in refusing to extend time” at [9]. Appeal dismissed and Mr Croker to pay costs.
1.16 Croker v Commissioner of Taxation
High Court proceedings number either S455/02 or S147/03
Commenced
Determined 12/12/03
[2003] HCATrans 542, Justice Gummow, Justice Heydon
Two applications for special leave involving the same parties heard together. One application seeks special leave to appeal from the decision of Justice Madgwick.
Not satisfied that there are sufficient prospects of success. Application refused with costs.
…..
Commissioner of Taxation (Bankruptcy applications by Commissioner arising from costs orders against Mr Croker in the High Court proceedings)In original proceedings against Perks, Mr Croker caused a subpoena to be issued to the Commissioner of Taxation. Led to proceedings in the Supreme Court ([1999] NSWSC 296), Court of Appeal (27/09/99) and High Court (17/03/00).
Costs orders made against Mr Croker in the Supreme Court and Court of Appeal proceedings gave rise to attempts by the Commissioner to issue bankruptcy notices against Mr Croker. These notices were litigated in the Federal Magistrates Court ([2002] FMCA 128), Federal Court ([2002] FCA 1432) and High Court ([2003] HCATrans 542) as summarised above.
Costs order made against Mr Croker in the High Court proceedings (17/03/00) led to separate proceedings in the Federal Court, Full Federal Court and High Court as follows.
1.17 Croker v Federal Commissioner of Taxation*
Federal Court proceedings number N7207/02
Commenced
Determined 18/09/02
[2002] FCA 1157, Justice MooreAs a result of costs order made in favour of Commissioner in High Court proceedings (17/03/00), costs were taxed at $5781.98. Certificate of taxation issued and then registered as a civil judgment in the Local Court. Local Court issue Certificate of Judgment in amount of $5837.98 being taxed costs plus registration fee paid in Local Court.
Non payment leads to Official Receiver issuing bankruptcy notice.
Mr Croker brings application to set aside bankruptcy notice. Justice Moore finds that Commissioner had obtained judgment in Local Court in manner that was legally flawed because High Court of Australia Act and Service and Execution of Process Act were not intended to provide a mechanism for the enforcement of judgments of the High Court by a process of registration in a State Court. However not prepared to set aside the notice on that basis because no doubt that a genuine debt (less the Local Court filing fee) existed. Dismiss Mr Croker’s application with costs.
“It is necessary to deal with one further matter. During the hearing, the debtor raised the possibly (sic) of a counter-claim, set off or cross-demand based on alleged breaches of the Financial Management and Accountability Act 1997,(Cth). However this Act appear to relate solely to the proper use and management of public money, public property and other Commonwealth resources, and apparently contains no provisions which directly or indirectly create a cause of action resulting in compensation payable to individuals for maladministration or defective administration. In any event, even if such a cause of action was available, the debtor has not presented any cogent evidence indicating that he has suffered a detriment as a result of any conduct on the part of the Commissioner nor that there has been conduct which might constitute maladministration or defective administration” [at 21].
1.18 Croker v Federal Commissioner of Taxation*
Full Court Federal Court proceedings number N1014/02
Commenced
Determined 25/02/03
[2003] FCAFC 23, Justice Lee, Justice Whitlam, Justice Jacobson
Mr Croker’s appeal from decision of Justice Moore in [2002] FCA 1157 re validity of bankruptcy notice. Trial judge erred in finding that the registration was effective until such time as it was set aside as a judgment of the Local Court. Purported registration of the certificate as a judgment had no effect. Appeal allowed and bankruptcy notice set aside.
1.19 Croker v Commissioner of Taxation*
Full Court, Federal Court proceedings number N1014/02
Commenced
Determined27/3/03
[2003] FCAFC 66, Justice Lee, Justice Whitlam, Justice Jacobson
Mr Croker files a motion seeking costs arising from appeal in [2003] FCAFC 23. Motion dismissed with costs.
1.20 Croker v Commissioner of Taxation*
High Court proceedings number S455/02 and S147/03
Commenced
Determined 12/12/03
[2003] HCATrans 542, Justice Gummow, Justice Heydon
High Court hears 2 applications for special leave to appeal involving same parties. Not satisfied that there are sufficient prospects of success. Application refused with costs.
…..
Commissioner of Taxation – (Defamation proceedings)
1.21 Croker v Commissioner of Taxation
Supreme Court proceedings number 20096/03
Commenced 24/4/03 (statement of claim)
25/7/03 (amended statement of claim)
16/9/03 (further amended statement of claim)
Determined 28/10/03
[2003] NSWSC 980, Justice Levine
Action for defamation against Commissioner alleging Commissioner responsible for causing to be published on internet, newspaper and court lists that Mr Croker was in a “Matter of Bankruptcy”. Claims $2 million damages. On amended statement of claim seeks “unliquidated sum in common law, compensatory, and nominal damages.”Defendant files motion seeking security for costs and stay until security is given. Also objects to statement of claim. Asserts that the claim is frivolous so far as defendant is concerned and should be struck out as embarrassing. Defendant not responsible for court lists.
Mr Croker uses as address for service, street address for Darlinghurst Post Office.
“Were it necessary for me to come to a definitive conclusion, I would have no reservation in saying that the posting 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].
“..these proceedings …are, quite frankly, irredeemably hopeless and…I dismiss them as frivolous and as otherwise disclosing no cause of action” at [16]. Costs.
1.22 Croker v Commissioner of Taxation
Court of Appeal proceedings number CA41082 of 2003
Commenced 24/11/03 (holding summons)
24/2/04 (ordinary summons for leave to appeal)
Determined 4/6/04
Giles JA and Hodgson JA
Appeal from Justice Levine’s decision to dismiss in [2003] NSWSC 980. Per Giles JA “In my opinion 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” at [3]. Dismissed with costs.
1.23 Croker v Commissioner of Taxation
High Court proceedings number S234/04
Commenced
Determined 10/03/05
[2005] HCATrans 137, Justice Gummow, Justice Kirby
Seeking special leave re summary dismissal of defamation action.
“There 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. Special leave is refused with costs.”
…..
Commissioner of Taxation (Bankruptcy applications by Commissioner arising from costs orders against Mr Croker in the defamation proceedings)
1.24 Croker v Commissioner of Taxation*
Federal Court proceedings number NSD 1760/04
Commenced
Determined 24/02/05
[2005] FCA 127, Justice Hely
Commissioner issued bankruptcy notice arising from earlier costs order in the Supreme Court defamation proceedings determined by Levine J. Costs had been assessed at $12 972.30.Commissioner filed certificate issued by costs assessor at Local Court. Certificate included cost of registration and therefore showed total of $13 035.30. Bankruptcy Notice therefore overstates the quantum of debt owed to the Commonwealth by $63. Set aside on that basis.
Mr Croker also seeks damages by cross application. “The nature of this claim is not particularized…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 [The] claim does not give rise to a cause of action known to the law” [at 19].
Application is dismissed pursuant to O20 r 2 Federal Court Rules insofar as the application includes a claim for the award of damages. No order for costs.
…..
Commissioner of Taxation (Administrative Decisions (Judicial Review) Act Proceedings)1.25 Croker v Commissioner for Taxation
Federal Court proceedings number N440/04
Commenced 03/05/04
Determined 03/06/04
[2004] FCA 958, Justice Branson
Mr Croker commences proceedings against CommissionerAt earlier directions hearing Justice Branson identifies difficulties in seeking relief claimed. Permits Mr Croker to re-plead. “The deficiencies in Mr Croker’s original application were discussed with him at some length at the first directions hearing in this matter. I thereafter gave him leave to amend the application. It was pursuant to that leave that the present amended application was filed” at [2].
Amended application pleads cause of action for damages under the ADJR Act (for defective administration pursuant to the Financial Management and Accountability Act per [1] of Justice Emmett decision referred to below). Respondent applies to have amended application struck out.
“The only relief claimed by the amended application is $5 million damages for negligence. Mr Croker has confirmed today that the only causes of action that he seeks to pursue through this proceeding are first, a cause of action in negligence and secondly, although it is not yet raised in any document before the Court, possible claims touching on malicious prosecution” at [3]. “…the amended applications give 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” at [4]. “I am not persuaded that any useful purpose would be served by again allowing the applicant an opportunity to amend his application. The amended application is therefore dismissed. I do not grant leave to Mr Croker to file a further amended application.” Costs.
1.26 Croker v Commissioner of Taxation
Federal Court proceedings number N977/04
Commenced22/06/04 (notice of motion)
Determined 03/08/04
[2004] FCA 1409, Justice Emmett
After orders of Justice Branson in [2004] FCA 958, Mr Croker files a motion seeking an order dispensing with the rules that require an application for leave to appeal from the interlocutory judgment to be filed within seven days, and an order granting leave to appeal from the orders made by Justice Branson.“ Mr Croker does not suggest 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]. “There is no error on the part of Branson J. There is 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]. Dismissed with costs.
…..
Commissioner of Taxation (Damages claim arising from Commissioner’s attempts to bankrupt Mr Croker)
1.27 Croker v Commissioner of Taxation
Federal Court proceedings number NSD 1230/05
Commenced 25/07/05
Determined 06/04/06
[2006] FCA 372, Justice Cowdroy
Application for damages arising out of earlier issue of bankruptcy notices that were ultimately set aside. Mr Croker files application and Commissioner files notice of motion seeking to have application struck out. Mr Croker alleges “tortuous [sic] interference with the applicant’s constitutional rights” [at 4]. Seeks $10 million or other amount and other orders [at 5]. Finding that the court does not have jurisdiction to hear application. Further, application and statement of claim do not disclose any reasonable cause of action [at 28]. Application dismissed with costs.
1.28 Croker v Commissioner of Taxation
Federal Court proceedings number NSD 716/06
Commenced
Determined 08/06/06
[2006] FCA 720, Justice Edmonds
Application for leave to appeal from judgment of Justice Cowdroy in [2006] FCA 372.“Mr Croker’s application for leave to appeal was accompanied by a draft notice of appeal. However, that draft contains no arguable ground of appeal. I do not find that surprising because I am unable to identify any error in the judgment below” [at 3]. Leave refused with costs.
1.29 Croker v Commissioner of Taxation for the Commonwealth of Australia
Commenced 5 January 2009
Determined 12 March 2009
[2009] FCA 275, Justice MooreMr Croker sought to have heard and determined an application arising from the issuing of bankruptcy notices against him. Mr Croker wishes to allege that there has been, on the part of the Commissioner, a misfeasance in public office and seeks relief by way of damages and interest. Moore J noted that the application was similar to that made in Croker v Commissioner of Taxation [2006] FCA 372 and Croker v Commissioner of Taxation [2006] FCA 720. Mr Croker was ordered to pay the respondent's costs, with Moore J stating at [4]:
… The proceedings brought by Mr Croker were, as I have earlier indicated, in substance, proceedings of the same character that were heard and determined by Cowdroy J. It should have been apparent to Mr Croker that the proceedings were likely to result in them being dismissed. That matter was adverted to at a directions hearing, as was the issue of Mr Croker being potentially liable not only to pay the respondent’s costs but that they be paid on an indemnity basis. It should have been apparent to Mr Croker that his case was, in effect, hopeless, and in those circumstances I propose to order costs on an indemnity basis, and I so order.
1.30 Croker v Commissioner of Taxation for the Commonwealth of Australia
Commenced 19 March 2009
Determined 8 April 2009
[2009] FCA 353 Jagot JThese proceedings were an attempt by Mr Croker to seek an order granting leave to appeal against the orders of Moore J in Croker v Commissioner of Taxation for the Commonwealth of Australia [2009] FCA 275. In that case the Commissioner of Taxation had in his favour certain costs orders. As those costs remained unsatisfied, the Commissioner issued bankruptcy notices against Mr Croker. Mr Croker in these proceedings alleged that the Commissioner had committed the tort of misfeasance in public office. Mr Croker's application for leave to appeal by way of notice of motion was dismissed.
The Commissioner requested that Mr Croker pay the Commissioner's costs on an indemnity basis. Jagot J agreed. "This is a case where the proceeding should never have been brought. Accordingly, the second order I make is that the applicant is to pay the respondent's costs on an indemnity basis" [at 16].
…..
DENTAL PROCEEDINGS
1.31 Croker v Challoner
District Court proceedings number 9108/988
Commenced 15/12/98
Determined 6/8/99
A/Judge Sinclair (transcript available)
Statement of claim seeking at least $100 000 from dentist alleging professional misconduct in repairing fillings. Defendant files notice of motion that statement be struck out for want of prosecution. Mr Croker misses at least 1 court event and fails to adequately respond to request for particulars even in light of express discussion with A/Judge Sinclair.
Mr Croker alleges request for particulars was unethical. Struck out for want of prosecution on basis that requested particulars not provided, raised at hearing and directed to file affidavit. Affidavit largely irrelevant which means Mr Croker has failed to prosecute claim. Costs.
1.32 Croker v Challoner*
Supreme Court proceedings number 1212/99
Commenced 3/9/99
Determined 5/10/99
Justice Hidden
Summons seeks sum of $120 000 plus damages and setting aside decision of inferior court. Respondent brings strike out application as an appeal from District Court needs to be to the Court of Appeal, not the Supreme Court. Mr Croker says confused by which Court. Justice Hidden notes District Court Act refers to Supreme Court but Supreme Court allocates to Court of Appeal. No order as to costs.
1.33 Croker v Challoner
Court of Appeal proceedings number 40798/99
Commenced15/10/99 (notice without appointment)
10/12/99 (notice with appointment)
Determined 20/7/00
[2000] NSWCA 186, Justice Giles (judgment deals with both Challoner and Ewen appeals)
Mr Croker files notice of appeal without appointment seeking to appeal orders of Justice Hidden. Prompts defendant’s solicitor to write and query which orders are being appealed. Shortly thereafter notice of appeal with appointment is filed, without reference to orders of Justice Hidden.11/5/00 Registrar Irwin directs Mr Croker to provide address for service which complies with rules (Mr Croker had been using street address for Darlinghurst Post Office up until this time).
18/5/00 Mr Croker files notice of motion seeking to set aside direction re address for service and that he be permitted to continue to use 247 Crown St, Darlinghurst. Affidavit in support alleges proceedings against police prosecutor and Federal Court mean shouldn’t have to disclose address per Local Government Act and Crimes Act.
Respondent then files a motion seeking to have notice of appeal struck out.
Mr Croker alleges in affidavit that A/Judge Sinclair removed documents from the file that contained evidence relevant to case. Justice Giles dismisses ‘review’ of Registrar’s directions. Post Office is not suitable address for service. Deals with strike out application on basis that requires leave to commence out of time. Declines to grant leave. Decision of A/Judge Sinclair undoubtedly correct and grounds of appeal make no sense as challenge to the decision.
1.34 Croker v Challoner
Court of Appeal proceedings number 40798/99
Commenced 3/8/00
Determined 23/11/00
[2000] NSWCA 342, President Mason, Justice Powell, Justice Fitzgerald
Mr Croker files notice of motion seeking to have Court of Appeal review decision of Justice Giles. Statement of claim is “well nigh incomprehensible. Had ample opportunity to provide particulars that would give content to the pleading. Written and oral submissions to this Court well nigh incomprehensible. Failed utterly to demonstrate Justice Giles misdirected himself at [5], [14], [29-30] Motion dismissed with costs.
Not exhibited Croker v Challoner
High Court proceedings number S296/00
Commenced 18/12/00
Determined 14/09/01 (deemed abandoned)
(Summary taken from judgment of Justice Allsop in Mr
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 below)
Mr Croker files application for special leave to appeal from
order of Court of Appeal. Mr Croker out of time for filing and
serving application books. Court extends time for filing. Mr
Croker fails to file by extended date. Application deemed
abandoned.
Leads to proceedings in the Federal Court against the Deputy Registrar of the High Court.
…..
Deputy Registrar of High Court (ADJR Act proceedings arising from High Court proceedings deemed abandoned)
Following the decision of the Court of Appeal in proceedings against Challoner,
Mr Croker files application for special leave to appeal. In those special leave proceedings before the High Court, Mr Croker is out of time for filing and serving application books. The Court extends time for filing. Mr Croker fails to file by the extended date. Application deemed abandoned.
Leads to proceedings in the Federal Court against the Deputy Registrar of the High Court.
1.35 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N1402/01
Commenced 08/10/01
Determined 03/02/03
[2003] FCA 34, Justice Allsop
Mr Croker seeks relief from ‘decision’ of Deputy Registrar of the High Court re application for special leave deemed abandoned. Seeks relief under Administrative Decisions (Judicial Review) Act and the Judiciary Act. Seeks, amongst other things, writ of certiorari, writ of mandamus compelling Deputy Registrar to set a date for hearing in High Court. Also seeks $1 million plus damages.Judgment records Mr Croker as asserting “without particulars or any coherent explanation that the ‘act of changing sole carriage’ of the proceedings from Deputy Registrar Carlsund to Deputy Registrar Grey was an act of bad faith. It is not said by whom. The assertion is baseless and should not have been made, even by a litigant in person” [at 11].
Mr Croker further asserts in his pleadings “…’In addition the Matt Grey Deputy Registrar of the High Court of Australia was informed and requested to co-operate with payment dates of Australian Government Pension that applicant is a receipt of, applicant sore [sic] this as a reasonable request, the request fell on deaf ears.’ This is alleged to be further acts of bias and bad faith” [at 14]. Justice Allsop noted “I make the same comments about this assertion of bias and bad faith as I did at [11] above” [at 15].
Further “I spent some time explaining to Mr Croker that if, as he said, he had a valuable claim against Dr Challoner (not a party at this point) he should perhaps take all steps possible to resuscitate his High Court application” [at 27].
Re AD (JR) Act claim “failure of Mr Croker, on the merits to make out any substantive argument or any foundation for a substantive argument” [at 43]. Further, “In light of an available method of overcoming his present circumstances in the Court which was seized of the matter, being a court superior to this court in the federal hierarchy, a course deliberately considered and hitherto (for over one year) rejected, I would see no basis for granting any relief under the AD (JR) Act, even if some ground had been made out, which I cannot see” [at 46].
Re Judicial Act, no relevant jurisdictional error has been demonstrated even as arguable [at 49] and would decline to exercise on discretionary grounds.
“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 has been put to further expense in a case which lacks merit entirely, and in respect of the substance of which another Curt could have dealt with the matter substantively (and indeed may still be able to do so). In these circumstances, I will grant the second respondent leave to apply to argue for a special costs order” [at 50].
Justice Allsop commented [at 51-61] upon the related applications re photocopying of subpoena documents referred to below.
Mr Croker seeks leave to appeal from decision of Justice Allsop which gives rise to application for security for costs on behalf of the respondent.
Deputy Registrar High Court (Interlocutory proceedings re cost of photocopying subpoena documents)
In course of substantive proceedings outlined above, Court makes orders as to costs of photocopying and use of subpoena documents. Reduces photocopying costs to 50c per page.
Mr Croker seeks leave to appeal from these orders.
1.36 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N1402/01
Commenced 08/10/01
Determined 10/09/02
[2002] FCA 1117, Justice BeaumontMr Croker seeks leave to appeal from the orders made by Court regarding photocopying (including an order reducing the amount Mr Croker has to pay for photocopying in registry). Mr Croker submits that because he is a disability pensioner he is exempt from all photocopying fees. Justice Beaumont notes application is premature until Mr Croker can demonstrate a need to photocopy material. Stood over until Mr Croker can demonstrate such a need.
1.37 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N1402/01
Commenced 08/10/01
Determined 04/10/02
[2002] FCA 1260, Justice Beaumont
Justice Beaumont determines whether or not leave should be granted to appeal orders re photocopying.Mr Croker’s submissions include “It is alleged gross infractions of the applicants rights has to date been installed on the applicant and further gross infractions of the applicants rights seem to be pending it is requested that the first application be ruled on its merits and that the judgement of the docket judge by attended by sufficient doubt to warrant it being reconsidered by the Full Court and the substantial injustice that the docket judge has installed on the applicant be set aside” [at 1].
Justice Beaumont “I am still not satisfied that Mr Croker has demonstrated to the Court any need to pursue his proposed appeal” [at 3]. Application for leave to appeal dismissed but given evidence of Mr Croker’s medical condition suspend dismissal to give Mr Croker opportunity to apply for variation or discharge of order.
1.38 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N1402/01
Commenced 08/10/01
Determined 28/10/02
[2002] FCA 1343, Justice Beaumont
Motion to vary or discharge orders of dismissal in accordance with orders of Justice Beaumont in [2002] FCA 1260.Mr Croker seeks photocopy access to documents relevant to 2 questions in principal proceedings: whether a practice adopted in High Court Registry contradicts a decision taken by Deputy Registrar in his matter and whether Deputy Registrar was biased. “Significantly, in my view,
Mr Croker has not made 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” at [3] and “In 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” at [4].Court refuses motion seeking to vary orders.
Deputy Registrar High Court (Appeal from substantive decision of Justice Allsop and second respondent’s application for security for costs)
1.39 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N134/03
Commenced18/02/03
Determined 15/05/03
[2003] FCA 628, Justice MadgwickRespondent seeks security for costs on appeal from judgment of Justice Allsop in [2003] FCA 34.
Justice Madgwick notes that the appeal is clearly “hopeless” [at 10].
Security for costs ordered and appeal stayed until security provided.
1.40 Croker v Deputy Registrar of the High Court
Federal Court proceedings number N134/03
Determined 02/07/03
[2003] FCA 681, Justice Hely
Mr Croker seeks leave to appeal from the security of costs order of Justice Madgwick in [2003] FCA 628.Mr Croker relied on the decision of Justice Beaumont in Endormer Pty Limited (In Liquidation) v Australian Guarantee Corporation Limited [2001] FCA 510 to contend that the application for security for costs should go to the Full Federal Court rather than a single judge.
Justice Hely rejected that submission and noted that "the decision of Madgwick J was clearly correct. None of the criteria for leave to appeal…[have] been satisfied" [at 11].
Justice Hely concluded at [12] that this was "plainly a proper case for the provision of security, given the appellant's impecuniosity and the prospects of success on the appeal." Application dismissed.
1.41 Croker v Deputy Registrar of the High Court
Full Federal Court proceedings number N134/03
Determined 01/12/03
[2003] FCAFC 280, Justice Lee, Justice Goldberg, Justice Weinberg
This was a "purported appeal" at [1] from the above decision of Justice Hely, in which his Honour refused leave to appeal from an interlocutory order made by Justice Madgwick .The Court found "that the purported 'appeal'…[was] incompetent” [at 7] and Mr Croker's appeal rights had already been exhausted when exercised by Justice Hely in respect of the decision of Justice Madgwick.
Appeal dismissed with costs. Further “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 proceedings 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” at [8].
1.42 Croker v Deputy Registrar of the High Court
High Court proceedings number S356/04
Determined 05/08/05
[2005] HCA Trans 504, Justice McHugh, Justice Heydon
Special leave to appeal from [2003] FCAFC 280 refused. Special leave application “complained that the decision of the Full Court is 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”. No prospects of success and does not raise a question of law of public importance.Application dismissed with costs.
…..
CUFFLINKS PROCEEDINGS
High Court of Australia (First CTTT proceedings)
2.1 Croker v High Court of Australia
CTTT proceedings number GEN 04/35365
Commenced 2/7/04
Determined 6/8/04Mr Croker purchases a pair of commemorative cuff links from High Court for $50.
Per Mr Croker’s affidavit cufflinks tarnished and “looked as if a piece of the gold had fell off” and so Mr Croker attended Registry on 24/06/04 and requested replacement. No replacements available but Registry says will arrange for replacement pair to be sent out. No replacement pair received by time application filed on 22/07/04.
Mr Croker makes application to CTTT seeking $100 (estimated costs of repair) and $1000 (damages).
Mr Croker discontinues and application withdrawn. (A later affidavit suggests that the proceedings were withdrawn because a replacement set of cufflinks were provided.)
High Court of Australia (Second CTTT proceedings)
2.2 Croker v High Court of Australia
CTTT proceedings number GEN 05/14570
Commenced 16/3/05
Determined 9/6/05
Dr Smith (Member)
Mr Croker receives replacement pair of cufflinks provided by the High Court Registry and further alleges they were not of merchantable quality. CTTT application seeking $132 for cost of repairs and $900 for financial and non-financial damages. Particulars later provide that the $900 comprised of $400 costs and $500 damages for breach of contract.The CTTT found that it had no jurisdiction because the Consumer Claims Act does not demonstrate a legislative intent to bind the Commonwealth.
2.3 Croker v Commonwealth of Australia
CTTT proceedings number GEN05/34087
Commenced 6/7/05
Determined 8/7/05
Mr Croker applies for rehearing in Gen 05/14570 under s.68 CTTT Act. The application was not granted because the application was "misconceived". The application effectively states that decision was wrong as a matter of law. Appeal on a matter of law lies in the
Supreme Court and is not a basis for a s.68 application.
2.4 Croker v Commonwealth of Australia*
Supreme Court proceedings number 30060/05
Commenced 20/7/05
Determined 5/10/05
[2005] NSWSC 994, Justice HoebenMr Croker applies to Supreme Court seeking order setting aside order of CTTT dismissing his application on basis of no jurisdiction.
Justice Hoeben J finds that as a matter of construction the Commonwealth is not bound by Consumer Trader and Tenancy Tribunal Act, Consumer Claims Act nor the Fair Trading Act. Summons dismissed with costs.
Commonwealth of Australia (Application for writ of summons in High Court)
2.5 An application for leave to issue process by Clayton Croker
High Court proceedings number S15/06
Commenced 7/12/05
Determined 01/03/06
[2006] HCATrans 75, Justice Heydon
Mr Croker sought to issue a writ of summons against the Commonwealth in the High Court. Justice Kirby directed that the Registrar should refuse to issue a writ without leave of a Justice. Mr Croker sought leave and Justice Heydon refused to issue a writ on basis that the proceedings were an abuse of process, frivolous and vexatious (summary drawn from [2006] HCATrans 599 referred to below).
2.6 An application for leave to appeal by Clayton Croker
High Court proceedings number S98/06
Determined 09/11/06
[2006] HCATrans 599, Justice Hayne, Justice Crennan
Mr Croker sought to appeal against decision of Justice Heydon in the previous proceedings, S15/06. “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.”
Commonwealth of Australia (First Federal Court proceedings)
Not exhibited Croker v Commonwealth of Australia
Federal Court proceedings number NSD2478/06
Commenced 19 December 2006.
Mr Croker files application, statement of claim and affidavit in
Federal Court.
On 6 February 2007 Justice Stone transferred the proceedings to the Federal Magistrate’s Court.
Not exhibited Croker v Commonwealth of Australia
Federal Magistrate’s Court proceedings number SYG548/07
23/03/07
Following order transferring proceedings from Federal Court,
matter first listed in Federal Magistrate’s Court on 23/03/07.
Court orders Mr Croker to produce documents relating to his
income and financial resources. Also requires production of
documents re commencement of proceedings in other courts
or tribunals and documents recording costs orders.
(Summary drawn from Croker v Commonwealth of Australia
Leads to application for leave to appeal in Federal Court as set out below.
2.7 Croker v Commonwealth of Australia
Federal Court proceedings number NSD504/07
Determined 24 May 2007
[2007] FCA 831, Justice Edmonds
Application for leave to appeal to Federal Court from interlocutory orders of FMC of 23/03/07.Federal Magistrate had discretion as to the making of the orders. Therefore on appeal Mr Croker had to demonstrate that the discretion miscarried.
Mr Croker “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 proceeding 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” [at 5].Application for leave to appeal refused. Costs.
2.8 Croker v Commonwealth of Australia
FMC proceedings number SYG548/07
Commenced
Determined 14 August 2007
[2007] FMCA 1374, FM Lloyd-JonesAfter Mr Croker’s application for leave to appeal interlocutory orders in the Federal Court was refused, the respondent’s application for summary judgment/dismissal or security for costs came on for hearing in the FMC. Commonwealth also sought an order that Mr Croker not be permitted to continue present proceedings or any further proceedings without leave of the Court.
“Mr Croker has since commenced a number of proceedings across multiple jurisdictions in relation to the alleged defective cufflinks. None of these applications have been successful” [at 6].
“Regardless of the outcome in other Courts, this Court has jurisdiction to hear the matter. No argument was made by the Commonwealth to dispute this view. Further, I accept the submission of Mr Croker that in matters of this nature, the remedies within this Court should be exhausted before seeking other avenues in higher courts. The suggestion that Mr Croker has been forum shopping appears to be no more than his inappropriate choice of jurisdiction in which to file his applications” [at 42].
FM Lloyd Jones identifies deficiencies in the statement of claim and then notes “The issues identified in this paragraph are not intended to be a detailed analysis and critique of the statement of claim, but rather an indication to Mr Croker as a self-represented litigant that the pleadings contains some defects which must be addressed before this matter proceeds further” [at 44].
Court accepts submissions of Counsel for the Commonwealth including, amongst others, “Finally, whether or not there are any other discretionary matters peculiar to the circumstances of this case, Ms Pepper submits that the weight is in favour of the Commonwealth. The application to this Court was filed by an individual with 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” [at 49].
Mr Croker’s application for a stay is dismissed. Mr Croker ordered to provide security for costs in sum of $30 000 by 11 September 2007, Mr Croker leave to file and serve amended application, adjourned for further directions.
2.9 Croker v Commonwealth of Australia
Federal Court proceedings number NSD1668/07
Determined17/10/07
[2007] FCA 1593, Justice BuchananMr Croker brings application for leave to appeal from “the order” made in FMC on 14/08/07 ie the security for costs orders and other orders.
After quoting Mr Croker’s affidavit in full Justice Buchanan notes “In my view this affidavit does not comply with the requirements of Order 52 rule 4(2). I confess that there are parts of the affidavit which I do not understand at all” [at 9]. [Order 52 rule 4(2) sets out requirements for affidavit to be filed when filing an application for leave to appeal].
Re Mr Croker’s application that FMC proceedings be stayed pending challenge in the High Court of earlier decision to refuse leave to appeal. “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” [at 13]. “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” [at 13].
As to order for security for costs “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” [at 18].
“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 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” [at 23].
Not exhibited Croker v Commonwealth of Australia
FMC proceedings number SYG548/07
After Justice Buchanan dismissed application for leave to appeal in [2007] FCA 1593, matter continued in the FMCA in accordance with the earlier orders and directions of
FM Lloyd Jones. Mr Croker did not provide security for costs nor file amended pleadings pursuant to leave granted to him.31/10/07 FM Lloyd-Jones stayed the FMC proceedings pending payment for security for costs and ordered that proceedings be dismissed if security not paid by 5.00pm on 16 November 2007. Mr Croker did not pay and on 6 March 2008 order made by FM Lloyd Jones dismissing the proceedings with costs. [Summary drawn from judgment of Justice Cowdroy in Croker v Commonwealth of Australia [2008] FCA 452 below]
Commonwealth of Australia (Second Federal Court proceedings)
2.10 Croker v Commonwealth of Australia
Federal Court proceedings number NSD2376/07
Commenced 04/12/07
Determined 08/04/08
[2008] FCA 452, Justice Cowdroy
Mr Croker files application, statement of claim and affidavit seeking
$200 000 based on same facts referred to in 1st Federal Court attempt (NSD2478/06).Cause of application claimed to be:
” 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.” [at 35]
Commonwealth filed a notice of motion seeking to strike out the application. Alternative relief sought including an order that Mr Croker shall not, without leave of the Court, institute proceedings against the Commonwealth, such new proceedings having the same subject matter as the current proceedings. Also order for security for costs.
“Court is mindful that power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse…The current proceedings can be so categorised. They have been instituted solely for the purpose of circumventing the orders made in SYG 548 of 2007. 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” [at 58-59].
“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 22007 set out above. Although it is not necessary to do so, the Court considers that grounds exist for the proceedings to be dismissed…as vexatious and frivolous” [at 61].
2.11 Croker v Commonwealth of Australia
Federal Court proceedings number NSD57/08
Determined 20/05/08
[2008] FCA 972, Justice RaresApplication by Mr Croker for leave to extend the time in which he may file an application for leave to appeal against decision of Justice Cowdroy in [2008] FCA 452.
“His Honour 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” [at 2].
“The absurdity of this claim is self-evident from the damages sought, the basis for which Mr Croker never particularised…The proceedings had, on their face, a demonstration of their vexatiousness and absurdity” [at 6].
On the application for leave “Mr Croker asserted that the reasons why he should be granted leave were that it would be in the interests of the administration of justice, Cowdroy J’s decision constituted a gross miscarriage of justice and it would be in the public interest. None of these matters has the slightest substance” [at 19].
“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. 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” [at 23-24].
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” [at 27-28].
Orders made restricting further proceedings in Federal Court or Federal Magistrate’s Court relating to cuff links dispute.
Commonwealth of Australia (bankruptcy notice arising from unpaid costs orders)
2.12 Croker v Commonwealth of Australia
Federal Court proceedings number NSD911/10
Commenced 07/10
Determined 22/09/10
[2010] FCA 1031, Justice FosterOfficial Receiver issued bankruptcy notice arising from six separate costs orders made against Mr Croker and in favour of the Commonwealth in course of “cufflink” and related proceedings. Mr Croker applies to have bankruptcy notice set aside.
Mr Croker claimed counter-claim, set-off or cross demand, including arising under claim for damages said to be pending in Supreme Court of NSW. Commonwealth writes to Mr Croker asking for details of these outstanding claims. Mr Croker does not respond.
“The applicant has declined to identify the proceedings which he referred in pars 8, 9, 11, 12 and 13 of his first affidavit. His failure to identify the proceedings relied upon is made all the more serious in light of the letter from the lawyers for the respondent…” [at 17]
“The applicant has failed to make out any case that the Bankruptcy Notice should be set aside. His Application must be dismissed with costs.” [at 29]
2.13 Commonwealth of Australia v Croker
Federal Magistrates Court proceedings number SYG 2094/10
Commenced 23/09/10
Determined 02/11/10
[2010] FMCA 852, Federal Magistrate DriverCommonwealth seeks sequestration order against estate of Mr Croker.
In seeking to defend the proceedings “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]
“What is said in paragraph 4 of the opposition is unintelligible.” [at 21]
“It is not this Court’s role to review Foster J’s judgment. In any event there was no evidence of fraud, collusion or miscarriage of justice in relation to any of the judgment debts in the proceedings before Foster J.” [at 22]
2.14 Croker v Commonwealth of Australia
Full Court Federal Court proceedings number NSD1276/10, NSD1581/10
Commenced
Determined 28/02/11
[2011] FCAFC 25, Justice Siopis, Justice Tracey, Justice Gilmour
Appeal from decision of Foster J not to set aside bankruptcy notice and appeal from Driver FM sequestration order. Mr Croker files notice of Constitutional matter during course of appeal proceedings.“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 19774 (Cth) has, in some way, been “subverted” by decisions made in this Court, thereby rendering it invalid.” [at 23]
“We are not persuaded that any of these grounds has merit.” [at 24]
“…his reliance on s.40(1)(g) was unsustainable.” [at 25]
“…we have experienced great difficulty in understanding the notice of a constitutional issue which has been filed.” [at 29]
2.15 Croker v Commonwealth of Australia
Federal Court proceedings number NSD 1276/10, NSD 1581/10
Commenced 24/03/11
Determined 01/04/11
[2011] FCA 312, Justice FlickMr Croker applies for stay of Full Court decision pending application for special leave
“The primary reason for refusing to grant the relief s sought (or some other form of relief) is an assessment that the application for special leave to appeal has little (if any) prospects of success.” [at 10]
“A submission repeatedly advanced this morning by Mr Croker was that there had been a failure ‘to hear' his case. The submission is, with respect, without substance. The arguments he has sought to advance…have all been heard and determined.” [at 11]
“As pointed out by the Full Court, there was a substantial overlap of the issues sought to be resolved by the Federal Magistrate and Foster J. Mr Croker has had the benefit of access to the Federal Magistrate’s Court and to this Court and has had each of his claims resolved. Each of the issues which have been advanced by him have been carefully considered and resolved adversely to him in a joint judgment of three Judges of this Court. There is no injustice in a party being bound by a decision which is clearly correct.” [at 12]
“The authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally…it is respectfully considered that the time has come for there to be finality to the present litigation.” [at 13]
“The tragedy of why a $50 purchase of cuff links had been the occasion for such protracted and expensive litigation – and which may ironically only be ultimately resolved in the High Court itself - is only a question which Mr Croker can satisfactorily explain.” [at 14]
2.16 Croker v Commonwealth of Australia
High Court
Commenced
Determined 07/06/11
[2011] HCASL 91, Justice Hayne, Justice CrennanApplication for special leave to appeal from orders of Full Court of Federal Court
“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 prospects of success. The summons should be dismissed as futile.” [at 7]
Proceedings stayed until Mr Croker provides security for costs in sum of $3000.
…..
Department of Employment and Workplace Relations (Newstart allowance, Entry payment, Activity agreement)
Not exhibited Croker v Secretary, Department of Education, Employment
and Workplace Relations
SSAT proceedings
Determined 08/08/07
Summary taken from [2008] FCA 971
As a condition of his Newstart allowance Mr Croker entered into successive activity agreements including one signed 8/12/06. This activity agreement apparently obliged him to do certain things directed to preparing his entry into the workforce including an Education and Training placement.Mr Croker enrolled in full-time diploma course at Sydney Institute of Technology and correspondence course in legal studies through Curtin University. On basis of this enrolment he applied for the Education Entry Payment.
SSAT held that he was not eligible for the Education Entry Payment.
3.15 Croker v Secretary, Department of Education, Employment and
Workplace Relations*
AAT proceedings number 2007/4034
Determined 29/01/08
[2008] AATA 90, R.Hunt (Senior Member)
Mr Croker appealed to AAT from decision of SSATSenior Member Hunt held that Mr Croker could not qualify for the education entry payment because although Mr Croker enrolled in a
full-time course, which was part of the requirements for the payment,
Mr Croker only ever intended to undertake the course part-time. Senior Member Hunt did not accept that Mr Croker satisfied the activity test for the Newstart Activity Agreement, outlined by s.601 of the SSA, because the agreement required the recipient to fulfil multiple requirements, the course Mr Croker was undertaking not being one of them [at pg.25-26 of transcript].
3.16 Croker v Secretary, Department of Education, Employment and
Workplace Relations *
Federal Court proceedings number NSD2548/07
Determined 27/06/08
[2008] FCA 971, Justice Stone
Appeal from the previous AAT decision. Mr Croker requested a statement in writing of the AAT's reasons for its decision. The AAT sent Mr Croker a copy of the transcript of proceedings and gave three paragraphs of reasons. Although not raised by Mr Croker, Justice Stone (at [5]) noted that the approach taken by the AAT was highly undesirable, as the findings and reason for the Tribunal's decision were difficult to discern from the transcript. However, Justice Stone concluded (at [9]) that the findings and reasoning of the Tribunal could be discerned and were not so inadequate as to warrant remitting the matter back to the AAT.The grounds of appeal listed in the Notice of Appeal were inadequate as grounds of appeal upon which Mr Croker could rely. Justice Stone concluded (at [21]) that they consisted "merely of assertions that the AAT came to the wrong conclusion or an unjust conclusion or made other unspecified errors." Mr Croker raised no issues that enlivened the jurisdiction of the Court; hence, the appeal was dismissed as incompetent. Costs awarded against Mr Croker.
3.17 Croker v Secretary, Department of Employment and Workplace Relations*
Federal Court proceedings number NSD1084/08
Determined 08/09/08
[2008] FCA 1549, Justice Graham
Mr Croker seeks an extension of time in which to appeal from orders of Justice Stone in above proceedings. Application for extension of time unopposed. Time extended.
3.18 Croker v Secretary, Department of Employment and Workplace Relations
Federal Court proceedings number (No 2) NSD 1084/08
Determined 08/09/08
[2008] FCA 1550, Justice GrahamApplication seeking leave to appeal from interlocutory judgment of Justice Stone dismissing appeal from AAT as incompetent.
Grounds of appeal include “The orders are not in the public interest”, “findings are found to be difficult in their conclusion”, that the Commonwealth failed to act as a model litigant, and that the judgment instils a gross miscarriage of justice.
Court found that Mr Croker had "failed to direct the Court's attention to any aspect of the primary judge's reasons for judgment…that suggests that her Honour erred in dismissing the appeal as incompetent” [at 16].
Leave to appeal was refused.
…..
Department of Employment and Workplace Relations (Newstart allowance, activity agreement with Maxnetwork)
Not exhibited Croker v Secretary, Department of Education, Employment
and Workplace Relations
SSAT proceedings
Determined 09/01/08
Summary taken from [2008] AATA 682Mr Croker required to enter into a Newstart Activity Agreement with MaxNetwork Employment. Mr Croker sought review of this decision in the SSAT which affirmed the determination.
3.19 Croker v Secretary, Department of Employment and Workplace Relations*
AAT proceedings number 2008/207
Determined 21/07/08
[2008] AATA 682, M. Allen (Senior Member)Mr Croker sought review of the SSAT decision. Only question before the AAT (as was before the SSAT) was whether Mr Croker could be required to enter into the Newstart Activity Agreement. Section 605(6) of the Social Security Act 1991 makes it abundantly clear that he could be so required.
“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” [at pg 3.]
The decision under review is affirmed.
3.20Croker v Secretary, Department of Employment and Workplace Relations (No. 3)
Federal Court proceedings number NSD1279/08
Commenced 14/08/08
Determined 25/09/08
[2008] FCA 1473, Justice Jacobson
Mr Croker seeks to appeal from decision of AAT. Respondent objects to competency of appeal on basis that the Notice of Appeal does not disclose a question of law.On the Notice of Appeal Mr Croker raises the following as questions of law and errors of law: whether he is still eligible for the Disability Support Pension, whether the respondent complied with s.606 (4) of the Social Security Act 1991, whether the activity agreement was signed under duress and was therefore invalid.
Respondent alleges that Mr Croker has not provided an adequate address for service. Mr Croker complains that he did not receive Respondent’s email enclosing Notice of Objection to Competency (and other documents) until served at Court on morning of hearing.
“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” at [19].
“It is also to be noted that the very matter which Mr Croker wishes to now raise by way of appeal was, of course, adverted to in the decision of
Stone J. Had Mr Croker wished to raise this point, it was perfectly open to him to do so in his initial Notice of Appeal. There is no explanation for the fact that he did not do so” [at 24].Notice of appeal dismissed as incompetent.
3.21 Croker v Secretary, Department of Education, Employment and
Workplace Relations
Federal Court proceedings number NSD1591/08
Commenced
Determined 24/10/08
[2008] FCA 1587, Justice JagotMr Croker brings application for leave to appeal from judgment of
Justice Jacobson and extension of time in which to bring appeal.Leave to appeal was refused. On pronouncement of the orders the respondent sought a fixed costs order. The matter was called outside the Court, as Mr Croker had not appeared, and he did not respond to the call. A fixed costs order was made in the amount of $800.
…..
Department of Families, Housing, Community Services and Indigenous Affairs (Disability Support Pension and Education Supplement, First Proceedings)
Not exhibited Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
SSAT proceedings
Summary taken from [2010] AATA 493
SSAT reviewed Centrelink decision to reject claim for Disability Support Pension. SSAT reviewed the decision and backdated entitlement to Disability Support Pension to 29/04/08.
In 07/09 Mr Croker applied for and received a Pensioner Education Supplement. Awarded as at 15/06/09 but Mr Croker claims eligibility since 29/04/08. SSAT dismissed claim.
3.22Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs*
AAT proceedings number 2009/4760
Commenced
Determined 02/07/10
[2010] AATA 493, Senior Member Bell
Mr Croker sought to review the decision of the SSAT“Unfortunately, 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. The decision under review is affirmed.” [at 11-12]
3.23 Croker v Department of Families, Housing, Community Services & Indigenous Affairs*
Federal Court proceedings number NSD954/10
Commenced 30/07/10
Determined 08/10/10
[2010] FCA 1136, Justice Rares
Mr Croker sought to appeal decision of AATA but ultimately discontinued the appeal once Department of Finances and Deregulation approved act of grace payment. Justice Rares highly critical of Department of Finances and Deregulation and time it took to determine the application for act of grace payment.Department of Families, Housing, Community Services and Indigenous Affairs (Disability Support Pension and Education Supplement, Second Proceedings)
Not Exhibited In April 2010 Mr Croker wrote to Centrelink asking that he be paid arrears of DSP for the period 6/6/06- 29/04/08. Centrelink declined and that decision was affirmed by the SSAT.
Taken from [2011] AATA 230
3.24 Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
AAT proceedings number 2010/3774
Commenced
Determined 06/04/11
[2011] AATA 230, Senior Member Britton
Mr Croker appealed to the AAT from the SSAT decision which affirmed Centrelink decision not to pay arrears on the DSP.
“I am without 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… The AAT does not have power at large to inquire into and determine matters that take its interest.” [At 23]
Decision under review affirmed.
…
Minister for Finance and Deregulation (decision to refuse act of grace payment)3.25 Croker v Minister for Finance and Deregulation
Federal Court proceedings number NSD 1184/11
Commenced 19/07/11
Determined 17/10/11
[2011] FCA 1188, Justice Robertson
Mr Croker seeks judicial review of decision by the respondent to refuse an application for “act of grace” payment for 23 month period between date on which DSP cancelled until the date that DSP recommenced following decision of the Social Security Appeals Tribunal.
“I do not see how a breach of the rules of natural justice occurred in connection with the making of the decision under review either as submitted by Mr Croker or at all. In oral submissions Mr Croker submitted that a break in the payments, later reinstated, constituted a denial of natural justice but, in my view, this is legally unsustainable.” [at 19]
3.26 Croker v Minister for the Department of Finance and Deregulation
Federal Court proceedings number NSD 1960/11
Commenced 08/11/11
Determined 21/11/11
[2011] FCA 1418, Justice Rares
Application for extension of time to file notice of appeal from decision of Justice Robertson.
“The draft notice of appeal contains 10 grounds, none of which could be said to identify any arguable error made by the primary Judge. Leaving to one side the grounds that the judgment had allegedly ‘instilling gross miscarriages of justice, unnecessary delay and there [sic] habitual gross and willful acts of misconduct” …in my opinion none of these grounds has the slightest substance.” [at 3]
“…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.” [at 9]
“I am of the opinion that the case advanced for the proposed appeal has no prospects of success and would amount to an abuse of the process of the Court.” [at 11]
…
Minister for Finance and Deregulation (ex gratia payments)
3.27 Croker v Minister for Finance and Deregulation
Federal Court proceedings number NSD 252/13
Commenced
Determined 10/05/13
[2013] FCA 429, Justice Cowdroy
Application for an order compelling the Respondent to “make decisions to pay compensation for detriment caused by defective administration (CDDA) claims/act of grace payments / ex gratia payments…”.
Mr Croker alleges that he delivered a letter by hand to a man who identified himself as David Hill at Department of Finance and Deregulations. States that the letter requested compensation for defective administration. When Mr Croker followed up on alleged letter, respondent replied that no one in the Department by that name and no letter received.
Mr Croker then files in Federal Court seeking relief in nature of writ of mandamus.
“Mr Croker bears the onus of establishing that he has made his request, however he was unable to produce a hard or soft copy of the letter dated 21 October 2011. He has also refused to make a separate, subsequent request on the same terms to the Minister. In view of the evidence placed before the court by both parties the court is not satisfied that Mr Croker has discharge the burden of proof; that is, the court is not satisfied that a request has been received by the Minister for an ex gratia payment.” [At 14]
“Mr Croker was on notice prior to the commencement of this proceeding that any attempt to raise an issue of non-compliance with the Legal Services Directions would fail.” [At 19]
“For the reasons above the court dismisses the application. It is unfortunate that these proceedings have been brought in the circumstances where, Mr Croker being aware that this application would be opposed for the reasons that David Hill was never an employee, and that the very foundation of his claim was in issue, he did not simply provide the Department with a separate request. Had he done so, this litigation may have been avoided.” [At 20]
3.28 Croker v Minster for Finance
Full Federal Court proceedings number NSD 953/13
Commenced
Determined 25 November 2013
[2013] FCAFC 154, Justice Rares, Justice Jagot, Justice Wigney
Appeal against decision of Justice Cowdroy.
“This appeal is, and the proceedings below were, an abuse of the process of the court…He has chosen a completely unreasonable and inappropriate means of pursuing his claim. He has caused the court to be involved in both an action and an appeal that were foredoomed to fail. He raised an argument based on the Legal Services Direction that he knew was unsustainable because of the earlier decision of a Full Court against him on the point.” [at 14-15]
“These proceedings both at first instance and on appeal were foredoomed to fail. They were clearly frivolous and vexatious. In our opinion, it is time for the Registrar to give consideration as to whether to commence proceedings…for a vexatious proceedings order to be made against Mr Croker…” [at 17]
3.29 Croker v Segal (A Deputy District Registrar of the Federal Court)
Federal Court proceedings number NSD441/14
Commenced 02/05/14
Determined 13/08/14
[2014] FCA 944, Justice Rares
Mr Croker sought to file an application for special leave to appeal from the orders of the Full Court in [2013] FCAFC 154. The High Court registry refused to accept his documents because as an undischarged bankrupt, Mr Croker was not entitled to bring any application without the consent of his trustee. Trustee responded to a request from Mr Croker by saying the trustee was not inclined to intervene. Trustee advised Mr Croker of right under s.178 Bankruptcy Act to appeal the trustee’s decision to the Federal Court.
Mr Croker sought to file in the Federal Court but Deputy Registrar rejected application for filing as the proposed application had not identified any law or provision to enliven jurisdiction and needed to provide details of the matter for which he was seeking special leave.
Mr Croker attempted to file new proposed application but document was rejected for filing because “on Deputy Registrar Segal’s view, that application could not possibly succeed and therefore, the document that Mr Croker wished to file were an abuse of process of the Court and frivolous and vexatious.” [at 8]
Mr Croker then filed proceedings seeking an order setting aside the decision of Deputy Registrar Segal.
“…as the Full Court found, Mr Croker’s pursuit of the proceedings was a completely unreasonable and inappropriate means of proceeding and they were an abuse of the process of the Court…In present circumstances, I am satisfied that the proposed application for special leave to appeal was a perpetuation of that abuse of process.” [at 17-18]
“The present application is a further transparent abuse of the process of the Court.” [at 20]
“This application has been waste of the Court’s time and resources. It should never have been instituted and it is high time that the Authority, as Mr Croker’s trustee, squarely took control of his behavior in bringing such frivolous litigation. These proceedings were foredoomed to fail and had no prospect of success.” [at22]
3.30 Croker v Segal (A deputy District Registrar of the Federal Court
Federal Court proceedings number NSD 882/14
Commenced
Determined 25/09/14
[2014] FCA 1044, Justice Perram
Mr Croker seeks leave to appeal interlocutory order of summary dismissal made by Justice Rares in [2014] FCA 944.
“As the reasons above will amply demonstrate, the application for leave to appeal is itself a gross abuse of process. It will be dismissed with costs.” [at 2]
Department of Employment and Workplace Relations (Higher Education Fund)
3.31 Croker v Secretary, Department of Education, Employment and
Workplace Relations
AAT proceedings
[2010] AATA 25, Senior Member Jill TooheyOn 3 March, 13 July and 9 September 2009, Mr Croker lodged applications with the Tribunal for review of various decisions by the Chief Executive Officer of Open Universities Australia Pty Ltd. Senior Member Toohey held that Mr Croker's applications for review should be dismissed under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) because of Mr Croker's failure to comply within a reasonable time with the Tribunal's directions.
…..
HREOC PROCEEDINGS
3.32 Croker v Human Rights and Equal Opportunity Commission
AAT proceedings number 12701
Commenced 28/11/97
Determined 18/02/98
[1998] AATA 160, H.E. Hallowes (Senior Member)Seeking to appeal HREOC decision not to inquire into complaint of disability discrimination. Deputy Registrar of the Tribunal had written to
Mr Croker querying jurisdiction. Dismissed because no power in AAT to review this decision.
…..
VICTIMS COMPENSATION PROCEEDINGS
Victims Compensation Fund Corporation (First Proceedings)
3.33 Croker – Application for Compensation by Primary Victim*
VCT application number 33909
Commenced 2/6/97
Determined 14/8/98
Assessor Hipwell
Application dismissed because compensable injury of shock had not been established.
3.34 Croker – Appeal of Mr Croker*
VCT application number 33909
Commenced 11/11/98
Determined 10/2/99
R.Gabb, (Magistrate and Tribunal Member)
Appeal dismissed – no medical evidence that applicant suffered psychiatric or psychological disorder and therefore not established “shock” as defined under the Act.
3.35 Croker v Victims Compensation Fund Corporation*
District Court proceedings number 1626/99
Commenced 5/3/99
Determined 7/9/99
[1999] NSWDC 7, Judge Garling
Suffered a post traumatic stress reaction. But condition does not fall within category of injury pursuant to Act. Grant leave to appeal but appeal dismissed. No order as to costs.
3.36 Croker v Victims Compensation Fund Corporation*
Court of Appeal proceedings number CA40737/99
Commenced 24/9/99 (notice without appointment)
3/12/99 (notice with appointment)
Determined 14/08/00
Registrar Irwin
Appeal dismissed by Registrar Irwin on 28/4/00 without prejudice to applicant making application for leave to appeal. Applicant then filed notice of motion seeking leave. Listed before Registrar who dismissed motion.
Victims Compensation Fund Corporation (Second proceedings)
3.37 Croker – Application for Compensation by Primary Victim*
VCT reference number W62998
Commenced 11/1/00
Determined 7/9/00
Assessor Hipwell
Determine application on evidence available, no corroboration available, unable to establish act of violence took place.
3.38 Croker – Appeal of Mr Croker
VCT reference number 62998
Commenced 6/10/00
Determined 6/3/01
Chairperson
Appellant seeks at least $49 000 in damages. Alleges breach of Justices Act and the Police Service Act. Not satisfied act of violence made out on evidence. No medical evidence demonstrating compensable injury. Appeal dismissed and determination of assessor affirmed.
3.39 Croker v Victim’s Compensation Fund Corporation
District court proceedings number 3890/01
Commenced 27/4/01 (notice of motion)
21/5/01 (notice of appeal)
Determined 2/8/01
A/Judge Boyd-Boland
Applicant is aggrieved but that is not a basis for success. Failed to demonstrate error of law or denial of natural justice. Dismissed with costs.
3.40 Croker v Victim’s Compensation Fund Corporation
Court of Appeal proceedings number 40588/01
Commenced 08/01 (holding summons)
2/11/01 (summons for leave to appeal)
Determined 4/2/02
Registrar Irwin
Summons for leave to appeal, written submissions and draft notice of appeal. Seeks damages in excess of $1.5 million. Alleges judge had a conflict of interest. Alleges investigating police officers unlawfully discriminated against applicant, had personal interest in outcome of decision etc. Respondent files strike out application on basis appeal incompetent. Registrar Irwin dismisses appeal as incompetent. Costs order made.
…..
MISCELLANEOUS CTTT PROCEEDINGS
Pellini
Not exhibited Local Court files suggest that Mr Croker commenced
proceedings in Consumer Claims Tribunal (as it then was) against Pellini Pty Ltd t/as Pellini House of Leather. Secured order for $250. Tribunal order made 23/10/96
Stewart
3.41 Croker v Eric H Stewart Pty Ltd
CTTT proceedings number GEN 04/43757
Commenced 17/9/04
Determined 11/10/04
Complaint to CTTT. Initials engraved on pen extend into decorative part of pen. Mr Croker seeks $1060.50 including damages. Defendant ordered to pay Mr Croker $54.
"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".
Broad Stitches
3.42 Croker v Broad Stitches & Embroidery Pty Limited*
CTTT proceedings number GEN 04/33681
Commenced 9/7/04
Determined 28/07/04
K. Ross (member)
Complaint to CTTT. Initials embroidered on wrong sleeve of overcoat. Seeks $1,210.50 including coat replacement, damages in contract and tort. Respondent ordered to pay $100 to Mr Croker.
…..
VEXATIOUS PROCEEDINGS ACT
3.43 Attorney General of New South Wales v Croker *
Supreme Court proceedings number 2010/20153
Commenced 22/01/10
Determined 26/08/10
[2010] NSWSC 942, Justice Fullerton
Application for vexatious proceedings order pursuant to s8(7)(b) of the Vexatious Proceedings Act 2008 (NSW)
Pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008, Clayton Robert Croker is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act.
Any legal proceedings instituted by Clayton Robert Croker in any court or tribunal in New South Wales before the date of this order are hereby stayed.
3.44 Croker v Attorney General of New South Wales *
Court of Appeal proceedings number 2010/275605
Commenced
Determined 10/12/10
[2010] NSWCA 355, Acting Chief Justice Allsop, Justice McColl
Mr Croker sought leave to appeal from the orders of Justice Fullerton in [2010] NSWSC 942
“Mr Croker has addressed the Court today principally on the basis that proceedings should never have been brought by reason of the asserted misconduct of the Attorney General of New South Wales in bringing the proceedings and his asserted failure to comply with the model litigant rules and particular Rules of Court as to the placement of the address for service on the summons.
None of the matters that have been indicted today in submissions by Mr Croker throws any doubt at all on her Honour’s reasons. There is no basis to think that there is any prospect of success in the appeal and, in my view, the application should be dismissed with costs.”
- AGLC
- Croker, in the matter of Croker [2019] FCA 871
- Case
- [2019] FCA 359
- Decision Date
CaseChat Overview and Summary
The court found that Mr. Croker had failed to substantially comply with the requirement to file the affidavit. While he had filed an affidavit, it did not sufficiently identify all the other proceedings he had instituted. The court held that it could receive as evidence any record of evidence given in another proceeding involving Mr. Croker. However, this did not excuse his failure to comply with the requirement to file the affidavit. The court found that Mr. Croker's application for leave to institute proceedings was deficient and dismissed it.
The court ordered that the application for leave to institute proceedings be dismissed. It noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011. The court did not grant Mr. Croker leave to commence a new proceeding as he had not substantially complied with the requirement to file the affidavit identifying all other proceedings he had instituted in any Australian court or tribunal.
Orders
Orders of the court
1. The application for leave to institute proceedings is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.