Soden v Croker (No 2)

Case [2016] FCA 15

FEDERAL COURT OF AUSTRALIA

Soden v Croker (No 2) [2016] FCA 15

File number(s): NSD 1392 of 2014
Judge(s): PERRY J
Date of judgment: 27 January 2016
Catchwords: PRACTICE AND PROCEDURE – application by Registrar of the Federal Court for vexatious proceedings order under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) – whether 103 proceedings over a 17-year period relied on by the Registrar were vexatious – meaning of “vexatious” and “proceeding” – whether proceedings instituted “frequently” – where respondent subject to a vexatious proceedings order in the Supreme Court of New South Wales: Attorney-General (NSW) v Croker [2010] NSWSC 942 – where respondent’s s 78B notice of a constitutional matter and submissions as to the constitutional issue unintelligible – whether preconditions to exercise of discretion satisfied – where respondent’s conduct evidences repeated patterns, including instituting proceedings without reasonable grounds, deficient pleadings, refusal to accept adverse decisions, re-litigation of the same disputes, disproportionate damages sought, pursuit of “spin off” proceedings, and unpaid costs orders – whether Court’s discretion should be exercised – where 33 additional proceedings not relied on as vexatious – where respondent has demonstrated no insight into conduct – where order necessary to protect the integrity of the Court’s processes and the public – extent of order warranted – order made under s 37AO(2)(b) not limited to subject matter or respondent
Legislation:

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 42A(5)(b), 44

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Bankruptcy Act 1966 (Cth) ss 41, 178

Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 4, 25(2)(a), 37AM, 37AO, 56

Federal Court of Australia Regulations 1978 (Cth) reg 2

Federal Court Rules 1979 (Cth) O 7 r 6(1), O 52 r 10, O 52 r 20

Federal Magistrates Court Rules 2001 (Cth) r 13.10

Financial Management and Accountability Act 1997 (Cth) s 33

High Court of Australia Act 1979 (Cth) s 14

High Court Rules 1952 (Cth) O 69A

High Court Rules 2004 (Cth) r 6.07

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Income Tax Assessment Act 1936 (Cth) s 16(3)

Judiciary Act 1903 (Cth) ss 39B, 55ZG, 78B

Justices Act 1902 (NSW)

Legal Profession Act 1987 (NSW) s 208KA

Police Service Act 1990 (NSW)

Residential Tenancies Act 1987 (NSW) ss 107, 110

Sale of Goods Act 1923 (NSW) s 19

Service and Execution of Process Act 1992 (Cth) s 105

Social Security Act 1991 (Cth) ss 94(1)(b), 605(1), 665U

Social Security Administration Act 1999 (Cth)

Supreme Court Rules 1970 (NSW)

Vexatious Proceedings Act 2008 (NSW) s 6, 8

Victims Compensation Act 1996 (NSW)
Cases cited:

An application by Croker [2006] HCATrans 599 (9 November 2006)

An application by Croker [2006] HCATrans 75 (1 March 2006)

Attorney-General (NSW) v Chan [2011] NSWSC 1315

Attorney-General (NSW) v Croker [2010] NSWSC 942

Attorney-General (NSW) v Gargan [2010] NSWSC 1192

Attorney-General…

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AGLC
Soden v Croker (No 2) [2016] FCA 15
Case
[2016] FCA 15
Decision Date

CaseChat Overview and Summary

In the case of Soden v Croker (No 2), the Registrar of the Federal Court applied for a vexatious proceedings order under section 37AO(2) of the Federal Court of Australia Act 1976 (Cth) against Mr Croker. The Registrar sought the order due to Mr Croker's extensive history of litigating, which spanned 17 years and included 103 proceedings deemed to be vexatious. The legal issues before the court involved determining the meaning of "vexatious" and "proceeding," whether the proceedings were instituted "frequently," and if the preconditions to exercising the court's discretion were satisfied. Additionally, the court had to consider Mr Croker's constitutional claim and whether it was intelligible.

The court found that the evidence presented by the Registrar demonstrated a pattern of vexatious conduct by Mr Croker, including instituting proceedings without reasonable grounds, deficient pleadings, and a refusal to accept adverse decisions. The court determined that Mr Croker's constitutional claim was unintelligible and did not provide a valid challenge to the relevant legislation. The court concluded that the preconditions for exercising its discretion were satisfied and granted the Registrar's application for a vexatious proceedings order. This order prohibits Mr Croker from instituting any proceedings in the Federal Court without the prior leave of the court.

The final orders of the court include prohibiting Mr Croker from instituting any proceedings in the Federal Court without prior leave, reserving costs, and setting deadlines for the parties to file and serve affidavit evidence and submissions on the issue of costs. The submissions are to be limited in length and formatted according to specific guidelines. The Registrar is also required to inform the court and Mr Croker if he wishes to seek an order in relation to staying any current proceedings.

Orders

Orders of the court

1. Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), the respondent is prohibited from instituting any proceedings in the Federal Court of Australia without the prior leave of the Court.

2. Costs are reserved.

3. The applicant has leave to file and serve any affidavit evidence and submissions on which he relies in relation to the issue of costs on or before 4.00pm on 10 February 2016.

4. The respondent has leave to file and serve any affidavit evidence and submissions on which he relies in relation to the issue of costs on or before 4.00pm on 24 February 2016.

5. The applicant has leave to file and serve any affidavit evidence or submissions in reply in relation to the issue of costs on or before 4.00pm on 3 March 2016.

6. Subject to the parties communicating any objection filed as correspondence and served on or before 4.00pm on 4 March 2016, the issue of costs will be determined on the papers.

7. The submissions referred to in orders 3 and 4 are not to exceed 5 pages in length, including any annexures, while the submissions in reply under order 5 are not to exceed 3 pages in length. All submissions are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

THE COURT NOTES THAT:

8. On or before 4.00pm on 10 February 2016 the Registrar is to advise the Court and Mr Croker in writing as to whether or not he wishes to seek an order in terms of order 3 of the amended originating application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons given below, I consider that the case for making a vexatious proceedings order requiring a grant of leave before proceedings are instituted is overwhelming. Notwithstanding that no proceedings were identified as pending in the Federal Court, I will allow the Registrar the opportunity to inform the Court as to whether orders staying any current proceedings are still pressed, given the time which has elapsed since judgment was reserved.2. THE EVIDENCE In support of the application for a vexatious proceedings order, the Registrar relied upon evidence of orders, judgments and related documents made in 103 proceedings involving Mr Croker as a party over a 17-year period. The most recent decision relied upon was that of Perram J in Croker v Segal [2014] FCA 1044 determined on 25 September 2014. Reliance was also placed in oral submissions on my interlocutory decision given on 7 April 2015 in Soden v Croker [2015] FCA 321. This evidence constituted as complete a record of Mr Croker’s litigation history as the Registrar’s inquiries and research were able to uncover, and included litigation which was not vexatious, or was not relied upon as vexatious. The task of navigating through the evidence of numerous proceedings said to be vexatious, together with the 33 additional proceedings involving Mr Croker not relied upon as vexatious, was assisted by the detailed index and summary of the different sets of proceedings prepared by the Registrar to accompany that evidence. That document was served on Mr Croker in February 2015. The additional 33 proceedings were identified by an asterix in the index and summary, and in a separate list. Mr Croker did not challenge the Registrar’s evidence but relied upon an affidavit affirmed by him on 30 March 2015. While his affidavit was read without objection, the affidavit is plainly inadmissible. It is comprised first of submissions under the heading “Facts” alleging that to apply s 37AO(2)(b) of the FCA Act “would in affect circumvent numerous judgments of the superior courts of record. As the majority of judgments do not state that there has been any suggestion of vexation.” I have had regard to this only as a submission. Secondly, in his affidavit, Mr Croker submits that the Registrar has failed to state which cases are relied upon in accordance with Court orders. Those cases relied upon, however, are identified in the documents filed by the Registrar as I have explained. Thirdly, a number of assertions are made by Mr Croker in his affidavit that the cases relied upon include cases of alleged corrupt conduct, referring to Croker v Minister for Finance and Deregulation [2013] FCA 429 and Croker v Minister for Finance [2013] FCAFC 154. In this regard, Mr Croker makes an unsubstantiated allegation against the Minister for Finance in relation to those matters and relies upon criminal proceedings against a legal practitioner that are irrelevant to this application. As such, I do not give these statements any weight insofar as they are relied upon as evidence of the truth of that which they assert. However, these statements are relevant to a consideration of the risk that Mr Croker might engage in vexatious proceedings in the future which is a matter relevant to the exercise of my discretion in determining whether to make the orders sought, as explained below. 3. THE LEGISLATIVE SCHEME3.1 General principles

Decision

Reasons for decision

Nor was a document entitled “Statement of Particulars” filed by Mr Croker any more informative (at [9]). Equally, Powell JA found at [29] that the written submissions filed by Mr Croker, much of which were directed to the order made by Giles JA dismissing his notice of motion “were well nigh incomprehensible and failed completely to address the issues required to be dealt with on an application such as this; nor were the submissions made by Mr. Croker on the hearing of the application directed to those issues.” Powell JA concluded that “Mr. Croker has failed utterly to demonstrate that Giles JA misdirected himself in the point of principle or that the discretion vested in him miscarried”: Croker v Challoner [2000] NSWCA 342 at [31]. 4.6.2Judicial review of decision of the Deputy Registrar of the High Court Undeterred, Mr Croker applied for special leave to appeal the Court of Appeal’s decision in Croker v Challoner [2000] NSWCA 342 in the High Court. However, by letter dated 14 September 2001, Deputy Registrar Gray advised Mr Croker that his application for special leave to appeal was deemed to have been abandoned as he had failed to file and serve the application books in compliance with Order 69A of the High Court Rules 1952 (Cth). Mr Croker then instituted proceedings against the Deputy Registrar of the High Court, seeking relief in the Federal Court under s 5 of the ADJR Act and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The relief sought included a writ of certiorari to quash the decision of the Deputy Registrar, an order for a writ of mandamus compelling the Deputy Registrar to accept the application books and set a date for the hearing, and that the Deputy Registrar pay the sum of $1 million plus damages. Mr Croker then sought an order from the Federal Court that the Registrar’s decision of 11 April 2014 be set aside. The details of his claim were that the Registrar’s decision denied his “Constructional” [sic] right to due process, was contrary to s 178 of the Bankruptcy Act 1966 (Cth) because it was a gross miscarriage of justice on him and was “inconsistent and repugnant to natural law, rule of law and natural justice”: Croker v Segal [2014] FCA 944 at [9]. Justice Rares dismissed the proceedings summarily as “a further transparent abuse of the process of the Court” (at [20]). Specifically his Honour held that:17. …[A]s 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.18. In the present circumstances, I am satisfied that the proposed application for special leave to appeal was a perpetuation of that abuse of process. His Honour further held that:22. This application has been [sic] waste of the Court’s time and resources. It should never have been instituted and it is high time that the Authority, as Mr Croker’s trustee, squarely took control of his behaviour in bringing such frivolous litigation. These proceedings were foredoomed to fail and had no prospect of success…

Ratio Decidendi

Legal Principle Established

Finally, on 25 September 2014, Perram J in Croker v Segal [2014] FCA 1044 refused leave to appeal from the decision of Rares J for the following reasons: 1. Mr Croker is an undischarged bankrupt. On 25 November 2013 the Full Court of this Court dismissed an appeal by Mr Croker to it describing it as lacking coherence (at [12]) and as being an abuse of process (at [14]): Croker v Minister for Finance [2013] FCAFC 154. At trial the case had concerned an application for orders in the nature of mandamus. Mr Croker then sought to apply for special leave to appeal to the High Court but an official of that Court suggested that any rights of appeal were vested in Mr Croker’s trustee in bankruptcy since the application for special leave was not a proceeding to recover damages for personal injury or wrong done to him. It is not necessary for me to decide whether it is correct that rights to claim prerogative relief vest in a trustee in bankruptcy on the making of a sequestration order: cf. Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45; Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380 at 435 [225]. 2. In any event, the trustee refused to continue the proceeding himself whereupon Mr Croker attempted to appeal that decision to this Court in its supervisory jurisdiction under s 178 of the Bankruptcy Act 1966 (Cth). I say ‘attempted’ because after some false starts, Mr Croker’s efforts to file the appeal papers were rejected, on 11 April 2014, by Deputy District Registrar Segal of this Court on the basis that the proposed proceedings were frivolous and vexatious. Mr Croker then sought judicial review of that decision. Rares J summarily dismissed that application under s 31A of the Federal Court of Australia Act 1976 (Cth) on 13 August 2014 holding that it was an abuse of process: Croker v Segal [2014] FCA 944. That order was interlocutory by force of statute: s 24(1D)(b). Accordingly, Mr Croker requires leave to appeal. It is for such leave that he now applies. As the reasons above will amply demonstrate, the application for leave to appeal is itself a gross abuse of process. It will be dismissed with costs.5. CONSIDERATION5.1 Mr Croker’s constitutional claim It is necessary first to consider the constitutional issues on which Mr Croker relied apparently to challenge s 37AO of the FCA Act, together with other legislation. Mr Croker sought to articulate the nature of that challenge and facts relied upon in a notice of a constitutional matter under s 78B of the Judiciary Act filed on 31 March 2015 (the s 78B notice) in the following terms:…The Constitutional Issues which is said to arise5. Is a constitutional question on whether a statute of the Commonwealth can be subverted in a valid and competent Federal Court of Australia?6. Is that the large issues of legal principle and legal policy that are of stake, are pertinent to the Constitution and its interpretation.7. Is a ‘live’ constitutional issue and should show the judicial exercise that the enacted s. 37AO (2)(b) of the Federal Court Act 1976 (Cth), Judiciary Act 1903 (Cth) section 39B (1A)(b), Acts Interpretation Act 1901 (Cth) section 15AB, Evidence Act 1995 (Cth) section 55 (1) and the Public Service Act 1999 (Cth) section 13 as amended has had to date and the amelioration or defalcation of the statutes. To show their validness.The facts showing the matter is one to which Section 78B of the Judiciary Act 1903 applies.8. The delineation of the enacted s. 37AO (2)(b) of the Federal Court Act 1976 (Cth), Judiciary Act 1903 (Cth) section 39B (1A)(b), Acts Interpretation Act 1901 (Cth) section 15AB, Evidence Act 1995 (Cth) section 55 (1) and the Public Service Act 1999 (Cth) section 13 are involving significant constitutional issues as the statutes are a substitute for a cause of action in the way of a public tort and therefore raise a constitutional question of high significant.9. The valid operation of the statutes is pertinent to constitutional sovereignty that sovereignty that rests with the citizens of the Commonwealth of Australia. Also the overall functions of the constitutional power to make laws for the peace, order, and good government of the Commonwealth.10. The argument has been taken to be a private interest and is now both one of a public interest and private interest.11. The fact that the argument is one of a public interest as well as a private interests the standing in or the amicus curiae of the Attorney General would be abidance of Section 78B of the Judiciary Act 1903 (Cth).12. For present purposes, what is critical is: what is the extent of the supreme legislative authority recognised in this judiciary system and what are the rules for recognising what are its valid laws.