Croker v Secretary, Department of Employment and Workplace Relations (No. 2)

[2008] FCA 340

FEDERAL COURT OF AUSTRALIA

Croker v Secretary, Department of Employment and Workplace
Relations (No. 2) [2008] FCA 340

CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD2253 OF 2007

EMMETT J

6 MARCH 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2253 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CLAYTON ROBERT CROKER Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs be substituted as the respondent in these proceedings.

2.This appeal be stayed until such time as the appellant provides security for the respondent’s costs in the sum of three-thousand dollars ($3,000).

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	NSD2253 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CLAYTON ROBERT CROKER Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	EMMETT J
DATE:	6 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the appellant appeals from orders made by a judge of the Court, by which an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was dismissed. The primary judge dismissed the appeal on the basis that the appeal identified no error of law, which is a pre-requisite under s 44 for an appeal to this Court from the Administrative Appeals Tribunal (the Tribunal).

2. By amended notice of appeal filed on 22 February 2008, the appellant stated the following grounds:

   (1)The orders are not in the public interest.

   (2)The orders are not in the interests of the administration of justice.

   (3)Expert medical evidence has not been given full consideration.

   (4)The orders manifest a gross miscarriage of justice.

   (5)Not all medical evidence that was available before the Tribunal was before the single judge of the Federal Court of Australia.

   (6)Only one medical report was independent, and all other medical evidence has been produced by the respondent and its contracting parties.

   (7)No independent specialist medical evidence has been obtained to date.

   (8)Inadequate hearing preparation by mistake in hearing date.

   (9)Alleged bias.

3. None of those matters is particularised in the grounds of appeals.  None of the grounds is directed to the conclusion reached by the primary judge that no error of law was identified by the appellant.  On its face, therefore, the appeal is doomed to failure.

4. The matter is before me now because the respondent, the Secretary of the Department of Employment and Workplace Relations, has applied for security for the costs of the appeal.  By notice of motion filed on 6 February 2008, the respondent to the appeal seeks orders that the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs be substituted as respondent, and an order that the appeal be stayed until such time as the appellant provides security for the respondent’s costs, in the sum of $3000. 

5. As I understand it, there is no opposition to the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs being substituted as the respondent and I propose to make that order.

6. The basis upon which the order for security is sought is outlined in an affidavit of Ms Dale Watson sworn on 6 February 2008.  The appellant has previously brought proceedings in the Federal Court arising from an interlocutory decision in the Tribunal that was the subject of the appeal below.  In each of those proceedings, orders were made for the proceeding to be dismissed, and the present appellant was ordered to pay the respondent’s costs.  In each proceeding, certificates of taxation have been issued by the Court in the sums of $5,730 and $2,233 respectively.  The first is dated 24 September 2007 and the second 12 October 2007.  The costs that are the subject of those certificates have not been paid.  Up to date, the respondent to the appeal has incurred in excess of $7,000 in defending the proceeding below. 

7. The appellant has previously been ordered to provide security for costs (see Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942). One of the bases upon which that order was made was the failure of the appellant to comply with O 7 r 6 of the Federal Court Rules, which provide that unless the Court or a judge otherwise orders, an address for service for a person must be the address of a place within Australia at which documents in the proceeding may, during ordinary business hours, be left for the person and to which documents in the proceeding may be posted to the person.

8. The address for service presently on the file is Suite 1, 1 Oxford Street, Darlinghurst, New South Wales 2000.  That is close to the address of Darlinghurst Post Office.  However, Darlinghurst Post Office is not prepared to accept mail addressed to the appellant.  In the earlier proceeding between the appellant and Sydney Institute of TAFE, findings were made concerning the impecuniosity of the appellant and his inability to meet an order for costs.

9. Under O 52 r 20, security for costs for an appeal is not to be required unless the court otherwise orders.  I am persuaded that this is a case where the court should otherwise order.

10. On the face of the notice of amended notice of appeal, the appeal has no prospects of success.  There is, in the absence of any further evidence from the appellant, a substantial risk that an order for costs of the appeal would not be satisfied, having regard to the material referred to in the judgment in Croker v Sydney Institute of TAFE, to which I have referred and to the fact that there are still outstanding orders for costs that have not been met.  There is no evidence from the appellant that the order would be oppressive or would stifle a reasonably arguable claim. 

11. The appellant sought an adjournment when the matter was called on today, on the basis that he had only recently found out the date for the hearing.  The notice of motion simply stated that the motion would be heard on a date to be advised by the registry.  Nevertheless, the motion was served shortly after 6 February 2008 by being sent to the address for service furnished.  It would have been open to the appellant to prepare evidence, whether or not he had been notified of a date for hearing. 

12. There is no suggestion by the appellant that any impecuniosity on his part arises out of conduct on the part of the Secretary that is the subject of the proceeding.  While the proceeding in the Tribunal related to a claim for social security benefits, it appears that the appellant has been provided with benefits different from those for which he claimed.  In any event, as I have said, there is no suggestion that any impecuniosity arises out of any failure on the part of the department to provide social security.

13. No aspect of public interest has been brought to my attention that would weigh in the balance against the making of an order for security, and no other particular discretionary matters peculiar to the circumstances of the case have been brought to my attention.

14. In the circumstances, I consider that it is appropriate that the proceeding be stayed until the appellant provides security for the respondent’s costs in the sum of $3000.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        17 March 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms D. Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2008
Date of Judgment:	6 March 2008