Croker v Segal

Case [2014] FCA 944

FEDERAL COURT OF AUSTRALIA

Croker v Segal [2014] FCA 944

Citation: Croker v Segal [2014] FCA 944
Parties: CLAYTON ROBERT CROKER v GEOFF SEGAL (A DEPUTY DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
File number: NSD 441 of 2014
Judge: RARES J
Date of judgment: 13 August 2014
Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011(Cth)
Financial Management and Accountability Act 1997 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Adsett v Berlouis (1992) 37 FCR 201 applied
Croker v Minister for Finance [2013] FCAFC 154 referred to
Croker v Minister for the Department of Finance and Deregulation [2013] FCA 429 referred to
Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 applied
Walton v Gardiner (1993) 177 CLR 378 applied
Date of hearing: 13 August 2014
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 23
Counsel for the Appellant: The appellant appeared in person
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 441 of 2014
BETWEEN:

CLAYTON ROBERT CROKER
Appellant
AND:

GEOFF SEGAL (A DEPUTY DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
Respondent

JUDGE:

RARES J

DATE OF ORDER:

13 AUGUST 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) the proceedings be dismissed.

THE COURT NOTES THAT:

2.The respondent does not seek any order for costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 441 of 2014
BETWEEN:

CLAYTON ROBERT CROKER
Appellant
AND:

GEOFF SEGAL (A DEPUTY DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
Respondent

JUDGE:

RARES J

DATE:

13 AUGUST 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

  1. On 25 November 2013, the Full Court dismissed an appeal by Clayton Croker (Croker v Minister for Finance [2013] FCAFC 154, per Rares, Jagot and Wigney JJ) against the decision of Cowdroy J dismissing his application for an order compelling the Minister to make a decision to pay him compensation pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth), known as an act of grace payment:  Croker v Minister for the Department of Finance and Deregulation [2013] FCA 429.

    Background

  2. In those proceedings, Cowdroy J had found that he was not satisfied that Mr Croker had proved that he had delivered a letter dated 21 October 2011 to the Minister’s Department seeking an act of grace payment, the non-response to which was the subject matter of his claim for mandamus to compel the Minister to deal with it.  The Full Court held that his argument on appeal had no coherence, that it and the proceedings before Cowdroy J were an abuse of the process of the Court and that when he began the proceedings he was aware that…

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Details
AGLC
Croker v Segal [2014] FCA 944
Case
[2014] FCA 944
Decision Date

CaseChat Overview and Summary

Clayton Croker sought to appeal the decision of the Full Court of the Federal Court of Australia in Croker v Minister for Finance [2013] FCAFC 154, which had dismissed his application for an order compelling the Minister to make a decision to pay him compensation, known as an act of grace payment. The Full Court had found that Croker had pursued an unreasonable and inappropriate means of proceeding and had caused the Court to be involved in proceedings that were an abuse of the process of the Court. Following the dismissal of the appeal, Croker sought to file an application for special leave to appeal in the High Court of Australia, but was advised by the Australian Financial Security Authority, his trustee in bankruptcy, that he was not entitled to do so without the consent of the trustee. Croker subsequently sought to proceed with the application on the basis that the trustee's decision was unreasonable.

The court considered whether Croker had demonstrated that his proposed application for special leave to appeal involved a question of law that was of general public importance or in the interests of the administration of justice, as required by s 35A of the Judiciary Act 1903 (Cth). The court found that there was no basis to think that anything in Croker's undisclosed papers demonstrated that his proceedings involved such a question of law. The court held that the proposed application for special leave was a perpetuation of the abuse of process that the Full Court had found his proceedings to be.

The court dismissed the proceedings and held that there was no order for costs. The dismissal of the proceedings was pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). The respondent did not seek any order for costs.

Orders

Orders of the court

1. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) the proceedings be dismissed.

THE COURT NOTES THAT:

2. The respondent does not seek any order for costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 25 November 2013, the Full Court dismissed an appeal by Clayton Croker (Croker v Minister for Finance [2013] FCAFC 154, per Rares, Jagot and Wigney JJ) against the decision of Cowdroy J dismissing his application for an order compelling the Minister to make a decision to pay him compensation pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth), known as an act of grace payment: Croker v Minister for the Department of Finance and Deregulation [2013] FCA 429.Background In those proceedings, Cowdroy J had found that he was not satisfied that Mr Croker had proved that he had delivered a letter dated 21 October 2011 to the Minister’s Department seeking an act of grace payment, the non-response to which was the subject matter of his claim for mandamus to compel the Minister to deal with it. The Full Court held that his argument on appeal had no coherence, that it and the proceedings before Cowdroy J were an abuse of the process of the Court and that when he began the proceedings he was aware that the Department had no record of any person named David Hill, as one of its employees, he being the person to whom Mr Croker claimed he had hand-delivered the unproduced letter upon which his proceedings relied. The Full Court held that Mr Croker had chosen a completely unreasonable and inappropriate means of pursuing his claim and had caused the Court to be involved in both an action and appeal that were foredoomed to fail. It held that the proceedings were clearly frivolous and vexatious, and recommended that it was time for the Registrar to take proceedings to have him made a vexatious litigant as he had already been made by the Supreme Court of New South Wales. Undeterred by what had occurred to that point, on 23 December 2013, Mr Croker next sought to file an application for special leave to appeal in the High Court of Australia. An attentive member of the High Court registry observed that, as an undischarged bankrupt, Mr Croker was not entitled to bring any application without the consent of his trustee. That was because of the vesting in the trustee of his after-acquired property pursuant to s 58(1) of the Bankruptcy Act 1966 (Cth). Later that day, Mr Croker approached the Australian Financial Security Authority, which was his trustee in bankruptcy. On 12 February 2014, the Authority wrote a detailed letter to Mr Croker explaining that the matter that he had sought to litigate in this Court and for which he was seeking special leave was not an action that could be characterised as one for personal injury or wrong done to a bankrupt within the meaning of the exception in s 116(2)(g) of the Bankruptcy Act, namely a right of the bankrupt to recover damages or compensation for personal injury or wrong relevantly done to him. Accordingly, the Authority advised him that the right to bring or continue any application for special leave to appeal in the previous matter was vested in the trustee, and the trustee was not inclined to intervene. The letter explained that one of the factors that a trustee-in-bankruptcy had to consider was its public duty as such a trustee, as well as the public welfare. The Authority pointed out that the Full Court had dismissed the appeal, concluding that the proceedings were an abuse of process. The letter referred to the comments of the Full Court about Mr Croker’s unreasonable and inappropriate behaviour in pursuing the claim and that it had been foredoomed to fail. It then continued:“It remains totally unclear to us how you say that there are any reasonable grounds on which the Official Trustee should continue these proceedings by making or supporting the making of an application for special leave.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Secondly, Mr Croker argued that the trustee’s decision was unreasonable, because the Authority had allowed him to bring a large number of previous cases without exercising its right to deal with those matters itself, as forming part of Mr Croker’s after-acquired property under s 58(1) of the Bankruptcy Act.Consideration I can only say it is regrettable that the trustee was not made aware of Mr Croker’s attempt to bring the litigation, the subject of the proceedings that were heard by Cowdroy J and the Full Court. Had the trustee done so, that litigation would no doubt not have proceeded. Mr Croker was entirely unable to articulate any ground on which he could have persuaded the High Court to grant special leave to appeal under s 35A of the Judiciary Act 1903 (Cth). I pointed out to him that he had not even placed the documents that he sought to file in the High Court before me so that I could consider whether there was any merit in his application for special leave to appeal. Essentially, the case before Cowdroy J and the Full Court involved a simple question of fact, namely whether Mr Croker had ever delivered the letter to the Department seeking the act of grace payment for which he claimed he had a right to obtain a writ of mandamus requiring the Minister to consider it. Cowdroy J found he was not satisfied that Mr Croker had, in fact, ever delivered the letter to the Department so as to engage any obligation of the Minister to consider it. The Full Court upheld that simple finding of fact and concluded that Cowdroy J correctly found that Mr Croker had failed to prove his case. Moreover, as the Full Court found, Mr Croker’s pursuit of the proceedings was a completely unreasonable and inappropriate means of proceeding and they were an abuse of the process of the Court. In the present circumstances, I am satisfied that the proposed application for special leave to appeal was a perpetuation of that abuse of process. As the Authority’s letter to Mr Croker of 12 February 2014 pointed out, in Adsett v Berlouis (1992) 37 FCR 201 at 208, Northrop, Wilcox and Cooper JJ said that a trustee in bankruptcy has a dual function, first, to administer the estate in the interests of the creditors and the bankrupt and, secondly, to exercise, as a public duty and for the public welfare, certain powers given and duties imposed under the Act. In my opinion, those duties include the control of the bankrupt’s after-acquired property that vests in the trustee under s 58 of the Act and the prevention of the frivolous wasting of the bankrupt’s estate on litigation that could not possibly succeed. There is no basis to think that anything in Mr Croker’s undisclosed papers he wished to file in the High Court demonstrated that his proceedings involved a question of law that was of general public importance, whether because of its general application or otherwise, or in respect of which the decision of the High Court was required to resolve differences of opinion between other courts or as to the state of the law, or that it was in the interests of the administration of justice either generally or in his case to require that the High Court consider the judgment of the Full Court as s 35A of the Judiciary Act required. Mr Croker has not demonstrated that he had anything to put to the High Court that transformed his proposed application for special leave from a continuation of the abuse of process that the Full Court had found his proceedings to be.