Croker v Philips Electronics Aust

[2001] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S34 and S35 of 2001

B e t w e e n -

CLAYTON ROBERT CROKER

Applicant

and

PHILIPS ELECTRONICS AUSTRALIA LTD

First Respondent

DICK SMITH ELECTRONICS PTY LTD

Second Respondent

TELSTRA CORPORATION LTD

Third Respondent

Applications for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 2.31 PM

Copyright in the High Court of Australia

MR C.R. CROKER appeared in person. 

MR I.R. PIKE:   I appear for the third respondent in both matters.  (instructed by Blake Dawson and Waldron) 

KIRBY J:   I have a certificate from the Deputy Registrar informing me that the solicitor for the first and second respondents in both matters, Philips Electronics Australia Ltd and Dick Smith Electronics Pty Ltd, first and second respondents, do not wish to be represented at the hearing of these matters and will submit to any order of the Court save as to costs.  Yes, Mr Croker.  You realise you have 20 minutes. 

MR CROKER:   I do. 

KIRBY J:   Normally, we have a little light that flashes, but we do not have that today, so we will have to rely on – the associate will give you a warning and give us a warning, and in the event that you are running out of time, we will tell you. 

MR CROKER:   Certainly, your Honour.  If I can bring the attention of the Court to the fact that this is a dual application, Nos 34 and 35 of 2001.  Both applications deal on a common level that the judgments of the court below did not adhere to statutory law as we find it in section 33 of the Federal Court Act, which states ‑ ‑ ‑

KIRBY J:   Yes? 

MR CROKER:   It states, your Honour, that leave or applications to the High Court will not come to the High Court from that of a single judge.  The judgment of Stone was in the appellate jurisdiction of the Federal Court, on appeal from Justice Branson’s decision.  At that stage, Justice Stone did not declare the appellate jurisdiction or that she was acting with the Full Court of the Federal Court of Australia, and so proceeded and dismissed the application on the grounds that the application was out of date, which was a procedural error by myself. 

If we look at that application itself, the application came to the court stating that the time limitations of the Federal Court Act was a rule that could be dispensed with in cases where there was a gross miscarriage of justice, and, at that stage, the breaches of the Trade Practices Act of the respondent were blatant breaches of the Trade Practices Act and did seem to warrant review after Justice Branson’s decisions.  Even though the application was out of time, the appeal went on the grounds that, being the gross miscarriage of justice, there should be a judicial review of the decision of Justice Branson. 

HAYNE J:   Can I just understand the decision of Justice Branson that you sought to appeal.  That was a decision, was it, summarily bringing your action to an end on the basis, right or wrong, that it was not articulated in a legally sufficient way.  Is that right? 

MR CROKER:   Your Honour, the statement of claim was struck out on that it was not sufficiently addressing causes of action, but to my knowledge and experience, it pointed out several causes of action under the Trade Practices Act. 

HAYNE J:   Now, if you have a cause of action, that is a cause of action that accrued less than three years ago, is it not?  This concerns events in November 1999, is that right? 

MR CROKER:   Your Honour, that would be correct.  I think 11 November 1999. 

HAYNE J:   A possible point of view is that if you have a cause of action that can be articulated sufficiently, you could commence a fresh action.  If that is so, why should we take it on? 

MR CROKER:   Your Honour, I would say that the application is not asking for that. 

HAYNE J:   I understand that, but why should we spend time looking at the sufficiency of reasons if, if you have a cause of action, it can be the subject of a fresh action and you can get on and fight the real point of dispute, rather than worry about procedural hurdles that you say have wrongly been put in your way. 

MR CROKER:   Your Honour, that would be a fresh view, but I also look at the point that there is, in my mind, procedural deficiency in the Federal Court’s practice, up to date, and it would be only a correction of the High Court to take the matter in and rectify the practice and procedure of the Federal Court.  The judgment ‑ ‑ ‑

KIRBY J:   Justice Branson suggested that you had commenced the proceedings, in any case, in the wrong court; that this was something that was more suitable to a small claims court, rather than the Federal Court of Australia.  Yet, I notice that you make a claim on page 25, I think it is, to $1 million punitive damages.  Paragraph (iii). 

MR CROKER:   Your Honour, there was action ‑ ‑ ‑

KIRBY J:   It seems to have got a bit out of its league, does it not?  In your case. 

MR CROKER:   Well, I think it is, myself, but I can now only follow the procedures set down by the government, the laws of the Constitution and its interpretation. At the third attempt to get a correct procedure in the Federal Court, by that time, the costs, and also the time and energy, was quite exhaustive by both parties.

KIRBY J:   Justice Branson in her reasons said that she had given you a number of opportunities to express your claim, and it is true that it is difficult for a person to do that without a lawyer at their side who can draft the claim for them, but there has to be a limit to this.  Courts have to get on with the work of others, otherwise other people are being kept out of their day in court. 

MR CROKER:   Your Honour, that is true.  If I could just take you back to the statement that Justice Branson made that the claim was in the wrong court.  The claim was actually originally filed in the Fair Trading Tribunal, under the Fair Trading Act, on grounds that the contractual engagement by both parties was one that rendered the contract void because of illegality.  But even on a second hearing, the application was dismissed.  The actual judgment and correspondence in that hearing was actually submitted in the judgment of Justice Branson’s proceedings.  So, to actually go back to a lower tribunal – there was no avenue for redress.  The only way was either the Federal Court or the Supreme Court.  With the Federal Court having jurisdiction in the Trade Practices Act, which is mirrored by the Fair Trading Act ‑ ‑ ‑

KIRBY J:   I realise all this, but you perhaps have seen earlier proceedings during the day, and you see how many people want to get into this Court.  Here we have a case which, on the face of things, does not seem to involve ‑ unless you can get up on the punitive damages – a very large sum of money; where your complaint is about purely procedural matters; and where you have a right, which most other people who come to this Court seeking special leave do not have, of starting afresh, sweeping the procedural matters away, and commencing anew.  So, if that is all so, why would we grant you special leave to reagitate these matters in this Court?  Especially given that you had a number of goes before Justice Branson to express the case in a legally appropriate form, and did not succeed. 

MR CROKER:   Your Honour, I can only reiterate that it would be only correction, and also interests of costs, from the High Court. 

KIRBY J:   Well, that therefore comes down to the essence of your case:  you want to come to us because you are fighting over who bears the costs of

the repeated failures to express your case in a correct way.  We do not sit here to try and fix up people’s cost burdens.  We have more than enough of our own work and substantive matters to deal with. 

MR CROKER:   Your Honour, in the same…..I can see where your argument is, but I still am of the view that the procedural matters of the Federal Court were incorrect, and even though ‑ ‑ ‑

KIRBY J:   I understand that argument, and I have read your written submissions, but normally, we would conserve taking on such a matter to a case where (a) there was a real substance in it; (b) there was a real suggestion of a miscarriage of justice; and (c) where a party has no other alternative way of resolving the matter.  None of those three issues seem to me to be present in your case. 

MR CROKER:   Your Honour, if you could just bear with me for a minute.  What I am looking at is, if there is a gross miscarriage of justice or the alleged gross miscarriage of justice, the rules set down have not been abided by, and so, for following its footsteps, a gross miscarriage of justice has occurred.  Now, when the Federal Court, in its procedure or practice, is in the appellate jurisdiction, and there are avenues for redress in the High Court, out of my experience, and also as legislation is indicating, the Full Court must sit and decide, or a justice, singly, must declare that he or she is addressing the issues of the court as the Full Court of the Federal Court of Australia.  Your Honour, I can see that there is a breach of the Act, section 33, that cannot be dispensed with, and that the application would only be applicable – or, actually, the application could be sent back to the Federal Court and the Full Court, for the Federal Court to deal with it.  Your Honour, it would be only a matter of directional procedures, instead of a fresh application. 

KIRBY J:   We have read your written submissions and we understand the matters you wish to raise.  Do you have anything else to say orally? 

MR CROKER:   No, your Honour. 

KIRBY J:   Thank you very much.  We do not need the assistance of the respondent.  The reasons of the Court will be given by Justice Hayne.

HAYNE J:   The applicant seeks special leave to appeal to this Court to challenge decisions in the Federal Court of Australia, the effect of which were, first, to refuse him leave to appeal out of time to the Full Court of the Federal Court against an order summarily terminating the proceeding he had instituted in that Court and, second, to refuse him leave to appeal against that refusal.  Neither of these orders determined the matter which was said to lie at the heart of the original proceeding in the Federal Court and which arose out of the applicant’s acquiring a mobile telephone in November 1999.

The applicant’s complaints about the matter could, if capable of adequate legal articulation, be the subject of fresh proceedings in whatever may be the appropriate tribunal.  That being so, it is not appropriate to grant special leave to this Court to challenge the sufficiency of the reasons given for the procedural orders that now are challenged.  I would propose that special leave to appeal be refused and refused with costs.

KIRBY J:   The order of the Court is special leave is refused with costs.

The Court will now adjourn until 10.15 am tomorrow in Canberra.

AT 2.45 PM THE MATTER WAS CONCLUDED