Croker v Commonwealth of Australia - [2007] FMCA 1374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROKER v COMMONWEALTH OF AUSTRALIA

[2007] FMCA 1374

PRACTICE & PROCEDURE – Application for dismissal of proceedings pursuant to r.13.10 and/or r.13.11 of the Federal Magistrates Court Rules 2001 (Cth) – application for security of costs pursuant to s.80 of the Federal Magistrates Act 1999 (Cth) and/or r.21.01 of the Federal Magistrates Court Rules 2001 (Cth) – application for the matter to be stayed pending an application to the High Court of Australia.

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s.67
Federal Court of Australia Act 1976 (Cth), ss.24(1A), 33(4)
Federal Magistrates Act 1999 (Cth), ss.17A, 80
Federal Magistrates Court Rules 2001 (Cth), rr.13.10, 13.11, 21.01
High Court Rules 2004 (Cth), r.6.07
Trade Practices Act 1974 (Cth), ss.52, 75AO

Attorney General v Wentworth (1988) 14 NSWLR 481 at 490-491
CATE v International Flavours & Fragrances (Aust) Pty Ltd [2007] FMCA 36
Croker v the Commonwealth of Australia [2005] NSWSC 994
Croker v Sydney Institute of TAFE (State of New South Wales) (2003) FCA 942
MG Distribution Pty Ltd & Others v Khan & Anor [2006] FMCA 666
MZKCN v Minister for Immigration & Citizenship (2007) FMCA 573
Peterson v Chubb Security Australia Pty Ltd [2003] FMCA 172
Vivid Entertainment LLC v Digital Cinema Australia Pty Ltd [2007] FMCA 157

Applicant:

CLAYTON ROBERT CROKER

Respondent:

COMMONWEALTH OF AUSTRALIA

File number:

SYG 548 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

7 June 2007

Delivered at:

Sydney

Delivered on:

14 August 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed by Mr Croker in these proceedings on 29 May 2007 seeking this matter to be stayed until the outcome of an application to the High Court of Australia is dismissed.
Mr Croker provide security for costs to the Commonwealth of Australia pursuant to s.80 of the Federal Magistrates Act 1999 (Cth) and/or r.21.01 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $30,000 by 4.00pm on 11 September 2007.
Mr Croker has leave to file and serve an amended application, statement of claim and supporting affidavit clearly stating the nature and details of his claim by 4.00pm on 11 September 2007.
The proceedings are adjourned for further directions to 21 September 2007 at 9.30am.
Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 548 of 2007

CLAYTON ROBERT CROKER

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

The Proceedings

The matter before the Court is from an application by the respondent, the Commonwealth of Australia ("the Commonwealth"), seeking the following orders:
a)Summary judgment;
b)That the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrate Court Rules 2001 (Cth) ("the Rules"); or
c)Security costs in the sum of $30,000; or
d)An order under r.13.11 of the Rules that Mr Croker not be permitted to continue the present proceedings or any further proceedings without leave of the Court.
In support of the application, the Commonwealth relies on the affidavits of:
a)Ms Gina Guirguis filed on 5 April 2007; and
b)Ms Julie Chandler filed 5 April 2007.
These orders are opposed by Mr Croker. However, as at the date of this hearing, no evidence has been filed by Mr Croker in response of the application filed by the Commonwealth.

Background

Although the factual background to this claim is lengthy, I believe it important that the details are set out in this judgment as the litigation history of this matter is central to the issues currently before the Court.
On 19 December 2006, Mr Croker filed an application, statement of claim and supporting affidavit in the Federal Court of Australia. On 6 February 2007, Stone J transferred the proceedings to the Federal Magistrates Court of Australia.
Mr Croker’s application related to a pair of cufflinks which Mr Croker purchased from the Registry of the High Court of Australia in Canberra on 12 November 2003 and which he alleges are defective. 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.
Mr Croker alleges in his affidavit that the Commonwealth ordered the manufacture of gold cufflinks embossed with the High Court insignia from the Royal Australian Mint prior to the High Court’s centenary celebrations. The 24 carat gold cufflinks have the letters "HCA" and the words "High Court of Australia 1903-2003" embossed on them. Mr Croker alleges that the Commonwealth embarked on an advertising campaign for products relating to the official commemorative centenary. In 2003, the High Court Registry advertised by internet, brochures and other means that there were several types of centenary products available for purchase by the public at its Registries. One of the items advertised was the gold cufflinks with the High Court insignia.
Mr Croker claims that prior to him purchasing the cufflinks, he saw the advertisements and contacted the High Court Canberra Registry in order to purchase a pair. On 10 September 2003, he emailed the Registry to certify that payment details were appropriate for the purchase of the cufflinks. On 12 November 2003, Mr Croker forwarded by Registered Post from Sydney the sum of $50 to the Canberra Registry for purchase of the cufflinks.
The Canberra Registry received the letter and the $50 on 14 December 2003 and Mr Croker took delivery of the cufflinks at the High Court Sydney Registry on or after 18 December 2003.
Mr Croker alleges that in early 2004 and after some months of usual wear, he noticed that the sides, backs and face of the cufflinks were spot tarnished and that on one side of one of the cufflinks, a piece of gold leaf had fallen off.
He emailed the Canberra Registry and sought a remedy. After no reply, he visited the Canberra Registry on 24 June 2004 and had a counter officer examine his cufflinks and he again requested a remedy. Mr Croker alleges that the officer produced four other pairs of cufflinks to replace the ones in his possession. However, all four pairs were also damaged to some extent and were not of merchantable quality. The counter officer then indicated that he would arrange for a merchantable pair of cufflinks to be sent to the Sydney Registry where Mr Croker could collect them. However, by 22 July 2004 Mr Croker had not yet been notified of their availability.
On 22 July 2004, Mr Croker filed an application with the Consumer, Trader and Tenancy Tribunal (CTTT) of New South Wales, file number CTTNSW GEN 04/35365 ("first application to CTTT"). On 29 July 2004, Mr Croker received an email stating that the second pair of cufflinks were at the Sydney Registry for collection, and he did so shortly after. On 6 August 2004, he filed a Notice of Discontinuance of his application to the CTTT.
Mr Croker then claims that in early 2005, he noticed that the second pair of cufflinks showed the same spot tarnishing as the first pair. Also that a small amount of copper-coloured metal was exposed on the rear of one of the cufflinks. He claims that the second pair of cufflinks was also not of merchantable quality and in need of repair.
Mr Croker then consulted a qualified Sydney jeweller and requested a quote for the repair of the second pair of cufflinks. On 10 March 2005, the jeweller returned with a quote of $132 for 9 carat gold plating and polishing. Mr Croker claims that the jeweller suggested that the original workmanship was of a poor quality.
On 16 March 2005, Mr Croker filed a second application with the CTTT in proceedings number GEN05/14570. On 13 April 2005, the CTTT made an order requiring submissions on jurisdiction of the CTTT in respect of proceedings involving the Commonwealth. The matter was adjourned to 9 June 2005 for hearing. On 9 June 2005, the application was dismissed on the grounds that the CTTT had no jurisdiction to hear a matter involving the Commonwealth. The judgment and orders of the CTTT were entered on 15 June 2005.
On 6 July 2005, Mr Croker filed an application with the CTTT for a rehearing but that application was dismissed by the chairperson.
On 20 July 2005, Mr Croker filed a summons and supporting affidavit in the Supreme Court of New South Wales. The summons filed in Croker v Commonwealth of Australia and Consumer Trader & Tenancy Tribunal of New South Wales [2005] NSWSC 994 pursuant to s.67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) to set aside the judgment of the CTTT. The matter was heard on 29 September 2005 and Hoeben J dismissed Mr Croker’s summons on 5 October 2005.
On 8 December 2005, Mr Croker sought to issue a writ of summons against the Commonwealth in the High Court. On 13 December 2005, Kirby J directed that pursuant to r.6.07 of the High Court Rules 2004 (Cth), the Registrar of the Court refuse to issue the proceedings without leave.
On 5 January 2006, Mr Croker sought an ex parte application for leave to issue proceedings in the High Court. On 1 March 2006, Heydon J refused leave and concluded that the proceedings were an abuse of process and were frivolous and vexatious. Mr Croker sought leave to appeal against the decision of Heydon J.
The application for leave to appeal was filed in the High Court on 3 April 2006 and sought to set aside the judgment of 1 March 2006. On 9 November 2006, Hayne and Crennan JJ dismissed that application for leave to appeal pursuant to r.41.10.5 of the High Court Rules.

Proceedings in this Court

The matter was transferred from the Federal Court to this Court by order of Stone J on 6 February 2007. The matter was listed for first Court date on 23 March 2007.
On that date, short minutes of order were made in the following terms:
(1) Pursuant to r.14.04 of the Federal Magistrate Court Rules 2001 (Cth), the applicant produce to the Court the following documents ("The Documents"), where the term "Document" or "Documents" have the same meaning as the Evidence Act 1995 (Cth) and include emails and other electronic records of any kind and all copies thereof of 30 March 2007.
(a) All Tax Returns and Notices of Assessment for the financial years ending 30 June 2005 and 30 June 2006;
(b) All BAS statements for the period commencing on 30 June 2006 to date;
(c) All financial statements, credit card statements and bank statements from 1 January 2006 to date;
(d) All other records recording any income received by the applicant from 1 January 2006 to date;
(e) All other documents recording, relating or referring to any cash at a financial institution, any shares, or any other equitable or proprietary interest, held by the applicant from 1 January 2006 to date;
(f) Any other documents recording, relating or referring to any debts owed by the applicant from 1 January 2007 to date;
(g) All initiating or originating processes filed by the applicant in any Court or Tribunal naming the Commonwealth, or any other emanation of the Crown in The Right of the Commonwealth, as either a respondent or defendant; and
(h) All documents recording, relating or referring to any cost orders made against the applicant by any Court or Tribunal within Australia and/or the applicant's payment of or failure to pay any costs;
(2) Upon production to the Court the respondent be granted immediate access to the documents;
(3) The respondent file and serve any notice of motion seeking preliminary dismissal of the proceedings and any affidavit in support by 5 April 2007;
(4) A notice of motion to be made returnable on 20 April 2007 at 9.30 am; and
(5) Liberty to restore on three days notice.
Mr Croker sought leave to appeal in the Federal Court from the orders made on 23 March 2007. Leave was required as the orders were interlocutory in nature: s.24(1A) of Federal Court of Australia Act 1976 (Cth). Justice Edmonds refused the application for leave to and ordered Mr Croker to pay the Commonwealth's costs.
On 29 May 2007, Mr Croker filed an affidavit in these proceedings sworn by himself and containing the following statement:
That I have an appeal by right to the High Court of Australia pursuant to s.33(4) of the Federal Court Act of Australia 1976 (Cth).
At the hearing of 7 June 2007, Mr Croker informed the Court that he filed an application for stay of this matter in this Court after the judgment of Edmonds J in the Federal Court, together with an appeal to set aside the orders of this Court made on 23 March 2007. Mr Croker informed the Court that the application for a stay was filed on 29 May 2007 but he did not have sufficient time to prepare submissions to the Court at this hearing.
Mr Croker submits that there was an ex parte application pending in the High Court which would be filed within two weeks, within the 28 day time limit available from the date of the judgment of Edmonds J.
Ms Pepper, for the respondent, submits that there is no automatic stay in relation to proceedings in this Court simply because an application may be filed in the High Court. There is no evidence that any application has been filed or is to be filed. It is submitted that Mr Croker has not tendered to this Court any draft notice of appeal or a draft special leave application: s.33(4) of the Federal Court of Australia Act.Ms Pepper argues that Mr Croker has put forward no basis which would permit this Court to grant a stay of the proceedings, including the Commonwealth’s application which has been listed for hearing.
Mr Croker has not complied with the orders made by this Court on 23 March 2007. The first order required the production of documents by 30 March 2007. No documents were forthcoming. Consequently, the second order has no effect. The Commonwealth has complied with the third order which is the subject of today's hearing. Mr Croker challenged the orders made by this Court on 23 March 2007 in the Federal Court and that application was dismissed. The Commonwealth has complied with the Court orders and is ready to proceed with its application. I am satisfied that, in the circumstances, the application by the Commonwealth should proceed.

The Application by the Commonwealth

The application for summary judgment or, alternatively, summary dismissal, is covered by s.17A(2) of the Federal Magistrates Act 1999 (Cth):
Section 17A Summary Judgment Material
17A (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) The first party is defending the proceedings or that part of the proceedings;
(b) The Court is satisfied that the other party has no reasonable prospects of successfully prosecuting the proceedings or that part of the proceedings.

It is also covered by r.13.10 of the Rules:

Rule 13.10 Disposal by Summary Dismissal
The Court may order that a proceeding be stayed, or dismissed generally, or in relation to any claim for relief in the proceedings, if the Court is satisfied that:
(a) The party prosecuting the proceedings or claim for relief has no reasonable prospects of successfully prosecuting the proceeding or claim;
(b) The proceeding or claim for relief is frivolous or vexatious; or
(c) The proceeding or claim for relief is an abuse of process of the Court.

Ms Pepper submits that Mr Croker has no reasonable prospects of successfully prosecuting the proceedings and there ought to be summary judgment in favour of the Commonwealth pursuant to s.17A of the Federal Magistrates Act or summary dismissal pursuant to r.13.10 of the Rules. This is especially in relation to the cause of action pleaded at paragraph 13 of Mr Croker’s statement of claim:
13. The respondent is liable for wrongfully defending a claim for breach of warranty pursuant to a law of tort and contravention of the Commonwealth Consumer Protection Law and in particular The Trade Practices Act 1974 (Cth).
Ms Pepper also referred to the relief sought in paragraph 15 of the statement of claim:
15. By reason of the matters set out able the applicant has suffered a loss and damage:
(i) The respondent has caused administrative costs to be incurred; and
(ii) The respondent has caused other financial and non-financial damage.
Ms Pepper argues that Mr Croker has no reasonable prospects of success because:
a)The Trade Practices and Breach of Warranty claim is pleaded as a threshold matter against the Commonwealth and that the High Court is an agency of the Commonwealth. Ms Pepper submits that it is not. Accordingly, as the pleadings currently stand, there is no basis for the Commonwealth liability as set out.
b)The cause of action pleaded in paragraph 13 of the statement of claim is a novel cause of action unknown at law.
c)No basis for administrative damages has been pleaded permitting the claim for damages in paragraph 15(i) of the statement of claim.
d)Mr Croker cannot get by way of damages in excess of that which has been offered by the Commonwealth in its offer of compromise.
e)The proceedings are otherwise an abuse of process given that the subject matter (the defective cufflinks) has been previously litigated in another jurisdiction: Croker v the Commonwealth of Australia [2005] NSWSC 994.
It is submitted that whether one applies the lower threshold in s.17A(2) or the higher threshold in r.13.10, the statement of claim does not sufficiently disclose an arguable cause of action or is an abuse of process and ought to be summarily dismissed. In support of this contention, Ms Pepper refers to MG Distribution Pty Ltd & Others v Khan & Anor [2006] FMCA 666 at [37]-[44] per McInnis FM:
[37] It will be noted that the new provision appears to lower the threshold whereby the Court may be satisfied that it is appropriate to summarily dismiss a claim. Section 17A(3) specifically removes the Court's consideration the concept of a proceeding otherwise needing to be "hopeless" or "bound to fail" for it to have "no reasonable prospects of success". To that extent, it seeks to modify the principles set out in a well known authority including DEY v Victorian Railway Commissioners (1949) 78 CLR 62; 23 ALJR 48; [1949] ALR 333 (DEY).
[38] The new provision clearly provides in s.17A(2) that this Court may give judgment for the respondents against the first applicant for the whole or part of the proceedings if a Court were to be satisfied that the respondents are defending the proceedings or part of the proceedings and the Court is further satisfied that the first application in this case has "no reasonable prospects of successfully prosecuting the proceedings or that part of the proceedings".
[39] However, the new statutory, in my view, does not necessarily distract entirely from the principles in relation to the summary dismissal which were described by Dixon J in DEY as being "well settled". It is relevant, in my view, to have regard to the following passage from the decision of Dixon J in DEY as follows:
The principle upon which the jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not entitle the Court to examine a cause of action allegedly to grow out of it from the purpose of seeing whether the proceeding amount to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether the fact or law and that the right of the parties depending upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process.
[40] The present application seeking to summarily dismiss the proceedings by the first applicant, while subject to the new s.17A of the FM Act, otherwise still relies upon the factors identified in r.13.10 of the Federal Magistrate Court Rules 2001 which provides as follows: (Not copied).
[41] It will be noted that the factors set out in that rule are similar, though not identical to the factors relied upon by the respondents in the notion of motion. A factor in common is the concept of "an abuse of process of the Court" and there being "no reasonable cause of action disclosed". The rule provides for the summary dismissal if the proceedings or claim for relief is "frivolous or vexatious", which in the present case I take to be relied upon by the respondents, ambient the respondents in their notice of motion refer to the proceedings having a "tendency to cause prejudice, embarrassment or delay in the proceedings."
[42] In any event, the concept of an abuse of process for there being no reasonable cause of action disclosed on the pleadings, when considered in the light of s.17A, still require the Court to be satisfied that the first applicant in this case has "no reasonable prospects of successfully prosecuting the proceedings". Hence the principles set out by Dixon J may still have application to the extent that when considering whether the Court is satisfied that the party has no reasonable prospects of successfully prosecuting the proceedings, the Court is entitled to consider whether there is a real question to be determined, whether of fact and law, and that the right of the parties depending upon it.
[43] If the Court were to find that there is a real question to be determined, whether it be of fact and law, and the rights of the party depend upon the real question, then it seems to me that it would not be competent for the Court to dismiss an action as frivolous or vexatious and an abuse of process, nor would it be competent of the Court to make a finding that it is satisfied that the party has no reasonable prospects of successfully prosecuting the proceedings.
[44] If there is a real question to be determined, whether it be of fact and law, and if the rights of the parties depend upon that, then it is difficult to see how the Court on summary dismissal application could be satisfied that a party had not reasonable prospects of successfully prosecuting the proceedings. To make a finding, in a sense, "begs the question" to be determined at trial.

See also CATE v International Flavours & Fragrances (Aust) Pty Ltd [2007] FMCA 36 at [71]-[75]; Vivid Entertainment LLC v Digital Cinema Australia Pty Ltd [2007] FMCA 157 at [18]-[30]; Peterson v Chubb Security Australia Pty Ltd [2003] FMCA 172 at [14]-[16].
Ms Pepper submits that if the statement of claim is not summarily dismissed in part or in total, then the Commonwealth seeks as an alternative security of costs in the amount of $30,000 for the reasons set out in Ms Chandler’s affidavit. In respect of the application for an order for security of costs, rr.21.01 and 6.01 of the Rules relevantly provide that:
Rule 21.01 Security for Costs
(1) On application by a respondent, the Court may order the applicant to give the security that the Court considers appropriate for the respondent's costs of the proceedings.
(2) For this rule:
The respondent includes an applicant if a cross-claim is made or the response to the application seeks orders in relation to the matters not covered by the applicant.
An application must be made in accordance with the form of the applications set out in Pt.I of Sch 2 and supported by an affidavit setting out the facts relied upon.
6.01 Address of Service
(1) A party to a proceedings must give an address for service.
(2) The party may given an address for service:
(a) by filing a relevant document that includes an address for service; or
(b) by filing a notice of address for service in accordance with the notice set out in Pt I of Sch 2;
(3) And address for service:
(a) must be addressed in Australia; and
(b) must include a telephone number at which the party may be contacted during normal business hours; and
(c) may include a facsimile number (if any) for the party.
Ms Pepper submits that the relevant factors governing when security of costs ought to be awarded are set out in Croker v Sydney Institute of TAFE (State of New South Wales) (2003) FCA 942 at [26] per Bennett J:
[26] In Chapman v Luminis Pty Ltd [2002] FCA 496 at [12], Tamberlin J considered s 56 of the Federal Court Act, together with O 28 and O 52 r 20 of the Federal Court Rules and concluded that the discretion of the Court under s 56 is broad and unfettered and not delimited by O 28 r 3, although it must be exercised judicially. He also referred, at [13], to the six specific matters identified in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 as relevant for consideration in deciding whether security for costs ought to be awarded. They are:
• The prospects of success;
• The quantum of risk that a costs order will not be satisfied;
• Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim;
• Whether any impecuniosity of the appellants arises out of the conduct complained of;
• Whether there are aspects of public interest which weigh in the balance against such an order;
• Whether there are any particular discretionary matters peculiar to the circumstances of the case.
See also Croker v Hutchinson 3G Australia Pty Ltd [2005] NSWSC 1242 and Wyong-Gosford Progressive Community Radio Inc v Australian Communications & Media Authority [2006] FCA 625 at [10]-[13].
Ms Pepper submits that applying those principles to the circumstances of the present case security in the sum sought ought to be aware because:
(a) Mr Croker’s address for service was incorrectly stated in the statement of claim filed on 19 December 2006, that being the Darlinghurst Post Office. This is not an address where documents can be left or where Mr Croker can be found and, moreover, there is no doubt that Mr Croker is aware that a post office address is not a proper address for service;
(b) The prospects of success of the proceedings for the reasons given above, and particularly in light of the offer of compromise served on Mr Croker, are limited;
(c) The quantum of risk that an adverse costs order will not be satisfied is high, especially in light of the outstanding costs order made by Hoebn J in Croker v Commonwealth of Australia [2005] NSWSC 994. No documents, pursuant to an informal request made by solicitors for the Commonwealth or pursuant to the orders made by the Court on 23 March 2007, have been produced by Mr Croker, thereby demonstrating that he has a capacity to meet such a costs order. Further, given Mr Croker's enthusiasm for litigation (for example his recent failed application for leave to appeal to the Federal Court against the orders of this Court made on 23 March 2007), it can be anticipated that the costs of these proceedings will not be insubstantial and will far outweigh whatever damages he could obtain even if he were successful;
(d) There is no evidence that the making of such an order would stifle the litigation;
(e) The impecuniosity of Mr Croker, if that is asserted by him, does not arise out of the conduct of the Commonwealth, whose conduct has been exemplary in that it has repeatedly offered to refund the costs of the cufflinks and/or pay for them to be repaired;
(f) There are no matters of public interest which arise in relation to the subject matter of the statement and claim. Rather, there is a public interest in ensuring that in the administration of justice, litigants are not continuously subject to unrecoverable costs incurred in the course of vexatious litigation;
(g) Mr Croker has an extensive history of litigation with cost orders made against him by the High Court, the Federal Court, the Supreme Court of New South Wales, the Court of Appeal and by this and other Courts: Ms Guirguis’ affidavit. As can be presumed in the absence of evidence to the contrary, most of these orders have remained unpaid. Thus, either Mr Croker does not have the means to satisfy outstanding adverse cost orders or he is disinclined to do so.
Ms Pepper submits that Ms Chandler’s affidavit sets out the foundation for the quantum of security sought. Since this affidavit has been sworn, additional costs have been incurred by reason of Mr Croker's application for leave to appeal to the Federal Court. In the circumstances of the case and given Mr Croker's propensity to challenge every step of proceedings in which he is a party, Ms Pepper submits that the sum sought is reasonable.
Ms Pepper further submits that Mr Croker is a vexatious litigation and relies on r.13.11of the Rules:
13.11 Vexatious Litigants
(1) If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court, (whether against the same person or against different persons) the Court may order:
(a) That any proceedings instituted by the person may not be continued without leave of the Court; and
(b) That the person may not institute a proceeding without leave of the Court.
(2) An order that under sub-r (1) may be made:
(a) On the Court's own motion; or
(b) On the application by the Attorney General or Solicitor General of the Commonwealth or of a State or Territory; or
(c) On an application of the Registrar.
Ms Pepper submits that in the present proceedings, as can be seen from Ms Guirguis’ affidavit and from Mr Croker's affidavit in support of his application and statement of claim filed in the Federal Court of Australia, Mr Croker has instituted multiple proceedings against the Commonwealth (or an emanation of the Commonwealth) both in respect of the subject matter of these proceedings and other matters. In all the circumstances, Mr Pepper submits that it is apparent that the current proceedings have been instituted and persisted with the intention of embarrassing or annoying the Commonwealth. That this is so is apparent by:
(a) Mr Croker's persistence with proceedings, notwithstanding the offer of compromise and the other numerous offers of settlement made by the Commonwealth; and
(b)The fact that the proceedings have previously been instituted in the High Court, the CTTT and the Supreme Court of New South Wales with respect to the alleged defective cufflinks.
Accordingly, and given Mr Croker's persistence and litigious history, the Commonwealth seeks that the Court on its own motion make the order sought in its application., see Attorney General v Wentworth (1988) 14 NSWLR 481 at 490-491; MZKCN v Minister for Immigration & Citizenship (2007) FMCA 573 at [19]-[21].

Conclusion

This appears to be a simple defective product claim which the Commonwealth has sought to deal with in the most expeditious manner possible. However, Mr Croker has declined to accept the offer made and sought to pursue litigation to resolve the issue. He has sought to have the matter heard in multiple Courts on multiple occasions, but has been unsuccessful because, as he claims, he commenced proceedings in Courts which do not possess the jurisdiction to consider the matter. On the material before me, it appears that all the proceedings that he has initiated have been rejected because the Tribunals or the Courts do not have the jurisdiction. Mr Croker made submissions disputing the findings as to jurisdiction, but that is not an issue that this Court has power to pursue. 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.
I am satisfied that Mr Croker was provided with the opportunity to pursue his action in this Court subject to a number of conditions which are discussed below. Consequently, I decline to make summary judgment pursuant to r.13.10 or r.13.11 of the Rules.
The statement of claim as it currently stands contains a number of substantial defects and needs to be repleaded before the matter can be brought back for final hearing. The breach of warranty claim which is pleaded pursuant to the law of torts raises an unusual concept, as breach of warranty claims are normally pleaded pursuant to the law of contracts. As this is not a negligence claim, it is not apparent from the pleadings as they now exist that any breach of warranty claim can arise pursuant to the law of torts. The Trade Practices claim will be subject to Mr Croker being able to prove that the cufflinks were defective based on the evidence he places before the Court. However, that claim as currently pleaded relies on the High Court of Australia being a Federal government agency conducting business within the meaning of the Trade Practices Act. I believe this may cause a fundamental defect in the way this claim is pleaded. A problem also exists in respect of what Mr Croker has identified as administrative costs, which he has listed in his pleadings under particulars of loss and damage. As damages tend to be financial in nature, the items described as non-financial damages and administrative costs should be reconsidered and repleaded. 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. Whether Mr Croker elects to replead the existing claim, or, alternatively, abandon the action and recommence his claim is a matter for him. Nevertheless, I will make orders granting him leave to amend his application, statement of claim and any affidavits in support.
I note that the set of $50 cufflinks the subject of this matter has a long and expensive history for the Commonwealth. The Commonwealth has tried on a number of occasions to provide a compromise to Mr Croker in order to settle his claim. Mr Croker has declined these offers and elected, for reasons not yet disclosed, to pursue a resolution through litigation. On Mr Croker’s own evidence, the original cufflinks were purchased for $50 and these were subsequently replaced. When the second pair developed a similar alleged defect to the original pair, the Commonwealth offered on a number of occasions to refund the purchase amount. Mr Croker also indicated that he sought advice in relation to replating the second pair at a cost of approximately $132, which was a cost the Commonwealth also offered to meet. So there have been a number of offers by the Commonwealth to resolve these proceedings in order to ensure that no further costs and expense incur. In the circumstances, I believe that an order under r.21.1 of the Rules is appropriate, that Mr Croker pay security before proceedings progress any further.
The Commonwealth seeks security in order to recover some of its costs if a costs order is made against Mr Croker. I am advised that the costs order made by Hoeben J in the Supreme Court, relating to the same cufflinks, remains unpaid. The orders I previously made on 23 March 2007 were not complied with. The validity of my discretion to make those orders was challenged in the Federal Court and that application was dismissed. There is no evidence before me that could in any way satisfy me that Mr Croker has the means to satisfy any adverse costs order against him if he elects to further pursue this litigation. That information has been sought both formally and informally and Mr Croker has elected not to provide any material.
Ms Pepper has provided the Court with a number of authorities that address the provision of security. I particularly rely upon Croker v Sydney Institute of TAFE (State of New South Wales) (2003) FCA 942 at [26] per Bennett J:
[26] In Chapman v Luminis Pty Ltd [2002] FCA 496 at [12], Tamberlin J considered s 56 of the Federal Court Act, together with O 28 and O 52 r 20 of the Federal Court Rules and concluded that the discretion of the Court under s 56 is broad and unfettered and not delimited by O 28 r 3, although it must be exercised judicially. He also referred, at [13], to the six specific matters identified in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 as relevant for consideration in deciding whether security for costs ought to be awarded. They are:
• The prospects of success;
• The quantum of risk that a costs order will not be satisfied;
• Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim;
• Whether any impecuniosity of the appellants arises out of the conduct complained of;
• Whether there are aspects of public interest which weigh in the balance against such an order;
• Whether there are any particular discretionary matters peculiar to the circumstances of the case.
Ms Pepper made submissions addressing the relevent considerations in this matter. With respect to prospects of success, Mr Pepper relied on the submissions already made in support of the summary judgment and summary dismissal: see [] above. Also on the present proceedings, Ms Pepper submits that the prospect of success of the application are low. Nor is it clear what extra damages Mr Croker could hope to obtain, other than those which the Commonwealth is already prepared to offer him, namely $50 and $132 for replating. Ms Pepper submits that the quatum of risk that the costs order will not be satisfied is high. This is demonstrated by Mr Croker’s failure to respond to any of the letters regarding the outstanding costs order of Hoeben J, or to put on any evidence that he has some means of meeting an adverse costs order.
Ms Pepper submits that whether or not the making of an order would be oppressive or stultify the claim is unknown because Mr Croker failed to advance any evidence as to his means. Similarly, the question of Mr Croker’s impecuniosity is not in evidence. Ms Pepper submits that with reference to public interest, there is no weight against the making of an order for security as this is a simple defective product claim which the Commonwealth has sought to deal with in the most expeditious manner possible. 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 a 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.
I rely of the affidavit of Ms Chandler which sets out the terms of the calculation of solicitor and counsel fees. I accept that the amount of $30,000 is a reasonable sum for security.When considered in light of Ms Pepper’s submission in respect of the criteria referred to in Croker v Sydney Institute of TAFE (State of New South Wales), I am satisfied that the security for costs order should be made before the matter proceeds.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 13 August 2007