Croker v Commissioner of Taxation
[2002] FMCA 128
•25 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROKER v COMMISSIONER OF TAXATION | [2002] FMCA 128 |
| BANKRUPTCY – Review of costs order made by a registrar – application made out of time – whether an extension of time should be granted. Federal Court Rules (Cth) |
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Cachia v Hianes (1994) 179 CLR 403
Low v Commonwealth [2001] FCA 702
Shephard v Blueberry Farms of Australia (Corindi) Limited [2001] FMCA 2
| Applicant: | CLAYTON ROBERT CROKER |
| Respondent: | COMMISSIONER OF TAXATION |
| File No: | SZ168 of 2002 |
| Delivered on: | 25 June 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 25 June 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | Mr A Shirvington Australian Government Solicitor |
ORDERS
The application for an extension of time is refused and the application to review order 2 made by Registrar Hedge on 14 May 2002 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, which are fixed at $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ168 of 2002
| CLAYTON ROBERT CROKER |
Applicant
And
| COMMISSIONER OF TAXATION |
Respondent
REASONS FOR JUDGMENT
I have before me for ex tempore judgment an application by CLAYTON ROBERT CROKER seeking an extension of time to review a decision of Registrar Hedge of this Court made on 14 May 2002 in the bankruptcy jurisdiction of the Court.
The decision made by Registrar Hedge was first to set aside a bankruptcy notice which had been challenged by the applicant, Mr Croker, and secondly, to make an order for costs which were fixed in the sum of $100 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (“the Federal Magistrates Court Rules”). The present application seeks first an extension of time in which to file an application for review of the registrar's decision on costs.
That application was filed on 11 June 2002, 28 days after the registrar's decision was made. It is clear from rule 20.01(1)(a) that the period within which such a review application is to be filed is 21 days, although the time period can be extended by the Court.
The other elements of the application are that Mr Croker seeks to set aside the costs order made by Registrar Hedge and he seeks costs in accordance with the prescribed scale of costs under the Federal Magistrates Court Rules, or alternatively, costs under the Federal Court Rules as assessed and if necessary taxed. He further seeks to expand his application to obtain an order for the respondent, the Deputy Commissioner of Taxation, to be restrained from issuing a further bankruptcy notice against him and also damages in the sum of $350,000 and costs of the application and such other or further relief as the Court deems just and appropriate.
Mr Croker filed an affidavit in support of his application on 11 June 2002 in which he recites basic facts concerning the history of the legal proceedings between the parties in connection with the bankruptcy notice.
I have proceeded today on the basis of the decision of Marshall J in Low v Commonwealth [2001] FCA 702 in which his Honour, in a judgment binding on me, as it was on appeal from this Court, set out the relevant considerations in connection with an application for an extension of time under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
In my view the same considerations apply to an application for an extension of time to review a decision of a registrar of the Court in the Court's bankruptcy jurisdiction. Those considerations are set out by his Honour in paragraph 11 of his judgment and are three. The first consideration is what the explanation for the delay in filing the application for relief is. The second consideration is what the interests of justice require and the third is whether the application discloses an arguable case.
The explanation for the delay advanced by the applicant is that he received incorrect advice from the court registry, that the period within which a review application should be filed was 28 days. I am invited by Mr Shirvington, for the respondent, not to accept that explanation but it is certainly possible that incorrect advice along those lines was given. Rule 21.01(1)(b) sets out a time period of 28 days for an application to review a decision of the registrar in the Court's family law jurisdiction and it is possible that someone in the registry may have misread the rule and given the incorrect advice. In addition the period of delay is only one week which is quite a small delay. I find therefore that the applicant has advanced a plausible and acceptable explanation for the delay in filing his review application.
The second consideration is what the interests of justice require. It is important in the interests of justice that decisions made by registrars under delegated power are amenable to review and it is important that obstacles should not be put in the way of applicants seeking that review. Nevertheless, the rules set out a clear time period within which a review application is to be made and it should not be assumed that an extension of time will necessarily be granted where that time period is exceeded.
The applicant has sought to advance some fairly adventurous propositions in addition to the simple application to review the costs order and nothing has been put forward at this stage to support the application insofar as it relates to the proposed restraining order and the damages claim. It would in the ordinary course be improbable, although not impossible, that I might be convinced to make a permanent restraining order preventing the issuing of a bankruptcy notice. It also is improbable, although not impossible, that I might be persuaded to entertain a damages application in the exercise of the Court's accrued jurisdiction.
It does seem, however, a tenuous proposition that those matters could be properly ventilated in a simple review application on a costs order where the principal issue in dispute between the parties has already been finally resolved. That issue was whether the bankruptcy notice formerly issued to the applicant should be set aside. That issue having been finally resolved it is unlikely in my view that the interests of justice would be served by having a much larger issue ventilated on an application to review the registrar’s costs order. There is nothing to prevent the applicant commencing proceedings in a court of competent jurisdiction claiming damages. This Court has no general jurisdiction in relation to damages and the likelihood of the Court being able to deal properly with a damages claim in the present circumstances is quite low. There is also no reason in principle why the applicant should not pursue his application for a restraining order separately, if he wishes.
That leads me to the final consideration which is whether the applicant is able to advance an arguable case. I have nothing before me which would enable me to draw any conclusion in relation to the application for a restraining order and for damages. In any event that is not the relevant question. The relevant question is whether the applicant has an arguable case in connection with the application to set aside the costs order and to substitute a different costs order.
The following circumstances are relevant. First, that the applicant was self represented in his application to set aside the bankruptcy notice. The registrar properly relied upon my decision in Shephard v Blueberry Farms of Australia (Corindi) Limited [2001] FMCA 2, in particular at paragraph 66, where I held that a self represented litigant was not entitled to an ordinary order for costs because the self represented litigant does not incur legal costs as an expense. The authority for that proposition is the High Court decision in Cachia v Haines (1994) 179 CLR 403.
Mr Croker this morning has pressed on me that that decision is now some eight years old and operates against the interests of self represented litigants. It certainly renders it difficult for self represented litigants to obtain an order for costs in any significant amount but I respectfully disagree with Mr Croker on the general issue of principle as to whether it is a proper result to deny a self represented litigant a costs order where the litigant has not incurred any legal costs.
The principle underlining the High Court's decision is that a self represented litigant is not entitled to costs to compensate for personal exertion in representing themselves and it seems to me that that is a proper principle. I am in any event bound by the decision of the High Court.
The amount of costs fixed by the registrar was $100. Mr Croker has not incurred any out of pocket expenses for court filing fees. He is not employed and it seems that he would not be able to advance an arguable case for any significant amount by way of witness expenses. He has incurred photocopying expenses and that was taken into account by the registrar in fixing the amount at $100. My conclusion is that the amount of $100 was properly fixed by the registrar in the exercise of her discretion and nothing has been advanced to me which would satisfy me that the applicant has an arguable case to disturb that assessment.
I conclude therefore that the applicant has not advanced an arguable case in support of his application. I will therefore refuse the application for an extension of time and dismiss the application for review of the registrar's decision.
I will order that the applicant bear the respondent's costs of the application to review the registrar's decision. I will order pursuant to rule 21.02(2)(a) that the applicant pay the respondent's costs and disbursements of this application which I fix in the amount of $1,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2002
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