Croker v Commissioner of Taxation

[2006] FCA 720

FEDERAL COURT OF AUSTRALIA

Croker v Commissioner of Taxation [2006] FCA 720

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

NSD 716 OF 2006

EDMONDS J
8 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 716 OF 2006

BETWEEN:	CLAYTON ROBERT CROKER Applicant
AND:	COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	30 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 716 OF 2006

BETWEEN:	CLAYTON ROBERT CROKER Applicant
AND:	COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	8 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 716 OF 2006

BETWEEN:	CLAYTON ROBERT CROKER Applicant
AND:	COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	EDMONDS J
DATE:	8 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

1. The applicant, Mr Croker, applies for leave to appeal from the judgment of a judge of this Court (Cowdroy J) dismissing an application seeking relief in the form of damages for alleged tortious conduct on the part of the respondent, the Commissioner of Taxation.  Certain ancillary relief was also sought.

2. The learned primary judge dismissed the application on the ground that this Court had no jurisdiction to hear it.  Moreover, he concluded that even if the Court did have jurisdiction to hear the claims, the Court would strike out the pleadings as not disclosing any reasonable cause of action: O 11 r 16 of the Federal Court Rules.

3. 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.

4. If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward, there will be no grant of leave to appeal: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [11] per Lindgren J. As in that case, the applicant fails at this first hurdle. I should perhaps add that, assuming the learned primary judge’s decision to be wrong, having regard to the history of the proceedings between Mr Croker and the Commissioner of Taxation, I do not consider that substantial injustice would be caused to Mr Croker by refusal of leave: cf., Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 135 at [21].

5. In all the circumstances, the application must be refused with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        8 June 2006

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 May 2006
Date of Judgment:	8 June 2006