Croker v Ewen; Croker v Challoner

[2000] NSWCA 186

CITATION:	Croker v Ewen; Croker v Challoner [2000] NSWCA 186
FILE NUMBER(S):	CA 40736/99; 40798/99
HEARING DATE(S):	20 July 2000
JUDGMENT DATE:	20 July 2000
PARTIES :	Clayton Robert Croker v Graham Ewen Clayton Robert Croker v Dr George Challoner
JUDGMENT OF:	Giles JA

COUNSEL:	Appellant in both matters in person C R de Robilliard - Respondent in matter No 40736/99 M Lynch - Respondent in matter No 40798/99
SOLICITORS:	Appellant in both matters in person Parish Patience - Respondent in matter No 40736/99 Abbott Tout - Respondent in matter No 40798/99
CATCHWORDS:	ADDRESS FOR SERVICE - address of post office - not compliance with Pt 9 r 6 - Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262 applied - APPEAL - extension of time - decision below unarguably correct - grounds of appeal made no sense - extension of time refused - appeal struck out. ND
DECISION:	In matter No 40736/99: Application concerning address for service dismissed with costs. In matter No 40798/99: Application concerning address for service dismissed with costs; extension of time to appeal refused; notice of appeal struck out; Mr Croker to pay Dr Challoner's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40736/99

CA 40798/99

GILES JA

Thursday 20 July 2000

CLAYTON ROBERT CROKER v GRAHAM EWEN
CLAYTON ROBERT CROKER v GEORGE CHALLONER

JUDGMENT

1 GILES JA: I have heard this morning three applications, two of them identical in content. I have done so exercising the powers of the Court of Appeal pursuant to s 46 of the Supreme Court Act 1970.

2    I will deal first with the applications with identical content. Mr Croker has appealed in proceedings involving Mr Ewen and in other proceedings involving Dr Challoner. Part 9 r 6 of the Rules requires that he have an address for service "at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceedings may be posted for that person." On 11 May 2000 the Registrar directed that Mr Croker provide an address for service which complies with Pt 9 r 6 by 18 May 2000. It seems that the address for service provided by Mr Croker until that time was 247 Crown Street, Darlinghurst, which it is agreed is the Darlinghurst Post Office. By notices of motion filed on 18 May 2000, one in each appeal, Mr Croker has sought orders to the effect that the Registrar's direction be set aside and that he be permitted to continue to use the address 247 Crown Street, Darlinghurst as his address for service.

3    It may be that there has been procedural inelegance in all this. Mr Croker was required under the Rules to have an address for service complying with Pt 9 r 6, and the Registrar's direction was really only a direction that he comply with the Rules. On one view it was for Mr Croker to apply to be relieved from compliance with the Rules, rather than to move for review of the Registrar's direction. It does not matter, because the question which has been argued is whether the address 247 Crown Street, Darlinghurst, that is, the Darlinghurst Post Office, can be used by Mr Croker as his address for service.

4    In Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262 in the Federal Court Black CJ held, with reference to a rule in relevantly identical terms to the terms of Pt 9 r 6 set out above, that a post office box was not an address for service within the rule. His Honour said that, whether or not such a box is the address of a place, it is not the address of a place at which a document may be left by way of service.

5    Mr Croker submitted that the use of the address of Darlinghurst Post Office as his address for service was in a different position. In his submissions he referred to poste restante, although there was no evidence that he had a poste restante arrangement at the Darlinghurst Post Office or what any such arrangement involved. Assuming that in some manner it meant that documents posted to Mr Croker would be put aside for him at the post office and could be collected by him, I think that what Black CJ said applies. I do not think any greater assumption is permissible, and accordingly in my view the use of 247 Crown Street, Darlinghurst as Mr Croker’s address for service does not comply with Pt 9 r 6, and in particular leaves a gap in the scheme contemplated by that rule by which documents can be left for a person at an address.

6    Mr Croker's submissions then seemed to seek dispensation from compliance with the rule on two grounds.

7 One ground was that his privacy should be protected, in relation to which he referred to s 562AG of the Crimes Act, 1900 dealing with non-disclosure of the residential address of the protected person under an apprehended domestic violence order, and to s 739 of the Local Government Act 1993 dealing with non-disclosure under that Act of material which would disclose a person's place of living if safety considerations were involved. Neither of these has anything to do with the present question, which is one of an address for service for proper conduct of litigation. Mr Croker has come to the Court seeking legal remedies and must, unless good reason be shown, provide an address for service even if he considers that infringes his privacy.

8    The second ground was, as I understand it, that he considered that provision of an address for service other than the Darlinghurst Post Office would have safety implications for him. He referred in his submissions to having invited the authorities to consider prosecution of other persons, perhaps including Mr Ewen, for various offences, and he also referred in his submissions to an oral exchange with Mr Ewen apparently intended to indicate that Mr Ewen bore him ill will. However, there was no evidence at all to underpin this.

9    Even if, as seemed to be the case, Mr Croker feels that he would need to use his residential address as his address for service if he cannot use the Darlinghurst Post Office, I do not think any reason has been shown for that being inappropriate. He is, of course, not obliged to use his residential address, but can use some other address for service provided the requirements of Pt 9 r 6 are met.

10    In my view, therefore, whether it be by way of review of the Registrar's direction or on an application by Mr Croker for relief from compliance with the Rules, the position should remain that Mr Croker is obliged to provide an address for service other than 247 Crown Street, Darlinghurst. His notices of motion should be dismissed with costs, and I so order.

11    The third application was in Mr Croker's appeal in the proceedings involving Dr Challoner.

12    Mr Croker sued Dr Challoner in the District Court, claiming damages in relation to dental treatment. On 6 August 1999 Sinclair DCJ ordered that his claim be struck out, in short on the grounds that the pleading did not disclose a cause of action and that, despite ample opportunity to do so, Mr Croker had not provided particulars requested by Dr Challoner which may have enabled content to be given to the pleading.

13    Mr Croker brought proceedings in the Supreme Court in some manner by way of challenge to that, which proceedings were dismissed by Hidden J on 5 October 1999. Mr Croker then filed an appeal from Sinclair DCJ's decision, erroneously describing it as a decision in proceedings heard and decided on 5 October 1989, on 10 December 1999. He stated the grounds of appeal as follows:

"1. The appeal lies in that Judge Sinclair failing to recognise evidence of and the nature of the facts of law in relation ship to the offence committed to the appellant.

2. The Appellant was in receipt of treatment by the respondent that was of a standard below that expected of a ordinary man.

3. The Judge Sinclair failed to acknowledge the want for prosecution of the Appellants."

14    In the notice of appeal Mr Croker claimed an order that the appellant (presumably meaning the respondent) pay “$150,000 in damages” and that the respondent pay "the cost of the several appeals".

15    Dr Challoner applied for an order that the notice of appeal be struck out. The grounds for that, shortly put, were first, that the appeal was filed out of time; secondly, that the grounds of appeal were unintelligible; and thirdly, that consideration of the evidence before Sinclair DCJ and his Honour's reasons showed that the appeal was manifestly unarguable and so the notice of appeal was an abuse of process.

16    It is apparent from what I have said that the appeal was out of time. By consent I received an oral application by Mr Croker for an extension of time. In my view it is sufficient to concentrate on that, as if no extension of time to appeal be granted then the appeal must be struck out.

17    I will proceed upon the basis that the misguided proceedings which came before Hidden J, which were commenced on or about 3 September 1999, gave some indication to Dr Challoner that Mr Croker wished to contest the decision of Sinclair DCJ.

18    Nonetheless, on an application for an extension of time it is appropriate to consider the prospects of success of the appeal. Sinclair DCJ's decision was unarguably correct, and the grounds of appeal make no sense as challenges to the decision. In those circumstances I consider that an extension of time should be refused, and in consequence the notice of appeal should be struck out. I so order, and order that Mr Croker pay Dr Challoner's costs.

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