Croker v Commissioner for Taxation of the Commonwealth of Australia

[2004] FCA 958

FEDERAL COURT OF AUSTRALIA

Croker v Commissioner for Taxation of the Commonwealth of Australia
[2004] FCA 958

NO ISSUE OF PRINCIPLE

CLAYTON ROBERT CROKER v COMMISSIONER FOR TAXATION OF THE COMMONWEALTH OF AUSTRALIA

N 440 of 2004

BRANSON J
3 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 440 of 2004

BETWEEN:	CLAYTON ROBERT CROKER APPLICANT
AND:	COMMISSIONER FOR TAXATION OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	3 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The amended application be dismissed. 

2.Leave is not granted to Mr Crocker to file a further amended application. 

3.The applicant pay the respondent’s costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 440 of 2004

BETWEEN:	CLAYTON ROBERT CROKER APPLICANT
AND:	COMMISSIONER FOR TAXATION OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	BRANSON J
DATE:	3 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The amended application which the respondent has applied to have struck out purports to make an application to the Court under the Administrative Decisions Judicial Review Act 1977 (Cth) (‘the ADJR Act’). The amended application is not in, or substantially in, the Form Number 56 in Schedule 1 to the Federal Court Rules as is mandated by O 54 r 2 of the Federal Court Rules. This is not a case in which I consider it appropriate to waive compliance with O 54 r 2. No decision to which the ADJR Act applies is identified in the amended application nor am I satisfied that such a decision could be identified were I to give Mr Croker leave to further amend his amended application.

2. 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. 

3. 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. 

4. The ADJR Act does not provide for the recovery of damages for negligence. It is concerned to provide public law remedies. The tort of negligence is a private law remedy. In any event 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.

5. Mr Croker’s reference to a possible claim for malicious prosecution is not readily understood in the context of his amended application.  In any event, as I understand it, the claim would be relied on in support of Mr Croker’s claim for damages.  I am not satisfied that this proceeding should be maintained to allow Mr Croker at some later time to raise a claim touching on malicious prosecution.

6. As I have already mentioned, I sought at the first directions hearing to indicate to the applicant at least some of the many difficulties that he would face in seeking to obtain the relief claimed in his application on the basis of the facts upon which he relies.  As I have already mentioned, he has been granted leave on one occasion to amend the application but the amended application fails to address the problems which stand in the way of the applicant obtaining the relief sought by him in this proceeding.

7. 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.  This proceeding is therefore at an end.  The applicant is ordered to pay the respondent’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             22 July 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	K Smark
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 2004
Date of Judgment:	3 June 2004