Soden v Croker (No 2)
[2016] FCA 15
•27 January 2016
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 (NSW) v Wilson [2010] NSWSC 1008
Attorney-General v Tareq Altaranesi [2013] NSWSC 63
Attorney-General v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353
Brogden v Attorney-General (NZ) [2001] NZAR 809
Cachia v Hanes (1994) 179 CLR 403
Commonwealth of Australia v Croker [2010] FMCA 852
Croker v Angus & Coote (Holdings) Limited [2002] NSWCTTT 186
Croker v Attorney-General (NSW) [2010] NSWCA 355
Croker v Bi Lo Supermarkets & Commonwealth Bank of Australia [2005] NSWCTTT 540
Croker v Challoner [2000] NSWCA 342
Croker v Commissioner for Taxation of the Commonwealth of Australia [2004] FCA 958
Croker v Commissioner of Police of New South Wales S236/1999 [2000] HCATrans 272 (26 May 2000)
Croker v Commissioner of Taxation - matter no. 40247/99
Croker v Commissioner of Taxation [2001] NSWSC 188
Croker v Commissioner of Taxation [2002] FCA 1157; (2002) 50 ATR 617
Croker v Commissioner of Taxation [2002] FCA 1432; (2002) 124 FCR 286
Croker v Commissioner of Taxation [2002] FMCA 128
Croker v Commissioner of Taxation [2003] FCAFC 23; (2003) 52 ATR 519
Croker v Commissioner of Taxation [2003] FCAFC 66
Croker v Commissioner of Taxation [2003] NSWSC 980
Croker v Commissioner of Taxation [2004] FCA 1409
Croker v Commissioner of Taxation [2005] FCA 127; (2005) 145 FCR 150
Croker v Commissioner of Taxation [2005] HCATrans 137 (10 March 2005)
Croker v Commissioner of Taxation [2006] FCA 372
Croker v Commissioner of Taxation [2006] FCA 720
Croker v Commissioner of Taxation [2009] FCA 353
Croker v Commissioner of Taxation for the Commonwealth [2003] HCATrans 542 (12 December 2003)
Croker v Commissioner of Taxation for the Commonwealth of Australia [2009] FCA 275
Croker v Commissioner of Taxation of the Commonwealth of Australia S186/1999 [2000] HCATrans 104 (17 March 2000)
Croker v Commonwealth Bank of Australia [2000] FCA 279
Croker v Commonwealth Bank of Australia [2000] FCA 488
Croker v Commonwealth Bank of Australia [2000] FCA 722
Croker v Commonwealth of Australia & Anor [2005] NSWSC 994; (2005) 194 FLR 366
Croker v Commonwealth of Australia [2007] FCA 1593
Croker v Commonwealth of Australia [2007] FCA 831
Croker v Commonwealth of Australia [2007] FMCA 1374
Croker v Commonwealth of Australia [2008] FCA 452
Croker v Commonwealth of Australia [2008] FCA 972
Croker v Commonwealth of Australia [2011] FCA 312
Croker v Commonwealth of Australia [2011] FCAFC 25
Croker v Commonwealth of Australia [2011] HCASL 91 – S113/2011
Croker v Commonwealth of Australia; In the Matter of Croker [2010] FCA 1031
Croker v Department of Education and Training (NSW) [2009] FCA 350
Croker v Department of Education and Training (NSW) (No 2) [2009] FCA 351
Croker v Department of Education and Training (NSW) [2009] FCA 431
Croker v Department of Employment and Workplace Relations [2006] AATA 536
Croker v Department of Families & Community Services [2000] FCA 269
Croker v Department of Families & Community Services [2000] FCA 883
Croker v Department of Families and Community Services [2001] AATA 321
Croker v Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1136
Croker v Department of Family and Community Services – No. S237 of 2000
Croker v Dept of Family & Community Services [2000] FCA 1304
Croker v Deputy Registrar of the High Court [2002] FCA 1117
Croker v Deputy Registrar of the High Court [2002] FCA 1260
Croker v Deputy Registrar of the High Court [2002] FCA 1343
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628
Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681
Croker v Deputy Registrar of the High Court of Australia [2003] FCAFC 280
Croker v Deputy Registrar of the High Court of Australia [2005] HCATrans 504 (5 August 2005)
Croker v Ewen; Croker v Challoner [2000] NSWCA 186
Croker v Human Rights and Equal Opportunity Commission [1998] AATA 160
Croker v Hutchinson 3G Australia Pty Limited [2005] NSWSC 733
Croker v Hutchison 3G Australia Pty Ltd [2004] NSWCTTT 584
Croker v Hutchison 3G Australia Pty Ltd [2005] NSWSC 1242
Croker v Minister for Finance [2013] FCAFC 154
Croker v Minister for Finance and Deregulation [2011] FCA 1188
Croker v Minister for Finance and Deregulation [2013] FCA 429
Croker v Minister for the Department of Finance and Deregulation [2011] FCA 1418
Croker v Perks & Anor [1999] NSWSC 752
Croker v Perks [1999] NSWSC 296
Croker v Philips Electronics Australia Limited [2000] FCA 1516
Croker v Philips Electronics Australia Limited [2000] FCA 1731
Croker v Philips Electronics Australia Limited [2000] FCA 991
Croker v Philips Electronics Australia Limited [2002] FCA 1393
Croker v Philips Electronics Australia Ltd [2000] FCA 1935
Croker v Philips Electronics Australia Ltd [2002] FCA 1454
Croker v Philips Electronics Australia Ltd [2003] FCAFC 43
Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 90
Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971
Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 682
Croker v Secretary, Department of Education, Employment and Workplace Relations (No 3) [2008] FCA 1473
Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1587
Croker v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 25
Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257
Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1447
Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1059
Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1224
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635
Croker v Secretary, Department of Employment and Workplace Relations (No 2) [2008] FCA 340
Croker v Secretary, Department of Employment and Workplace Relations [2008] FCA 1549
Croker v Secretary, Department of Employment and Workplace Relations (No 2) [2008] FCA 1550
Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 493
Croker v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 230
Croker v Segal [2014] FCA 1044
Croker v Segal [2014] FCA 944
Croker v State of NSW & Anor [2003] FMCA 181
Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942
Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 1159
Croker v Sydney Institute of TAFE [2005] HCATrans 505 (5 August 2005)
Croker v TAFE Commission [2009] FCA 1024
Croker v Victims Compensation Fund Corporation [1999] NSWDC 7
Endormer Pty Ltd (In Liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510
Ferdinands v Chief of Army [2013] FCAFC 103
Fuller v Toms [2013] FCA 1422
HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449
Jones v Cusack (1992) 109 ALR 313
Kowalksi v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153
Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2007] FCA 1069; (2007) 242 ALR 370
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Potier v Attorney-General (NSW) [2015] NSWCA 129; (2015) 89 NSWLR 284
Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Soden v Croker [2015] FCA 321
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Viavattene v Attorney-General (NSW) [2015] NSWCA 44
Date of hearing: 10 June 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 233 Counsel for the applicant: Ms D Ward Solicitor for the applicant Australian Government Solicitor Counsel for the respondent: The respondent appeared in person ORDERS
NSD 1392 of 2014 BETWEEN: WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
Applicant
AND: CLAYTON ROBERT CROKER
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
27 JANUARY 2016
THE COURT ORDERS THAT:
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.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 THE EVIDENCE
[5]
3 THE LEGISLATIVE SCHEME
[7]
3.1 General principles
[7]
3.2 What is a “vexatious proceeding”?
[11]
3.3 “frequently”
[23]
4 ANALYSIS OF MR CROKER’S PRIOR LITIGATION
[27]
4.1 Introduction
[27]
4.2 The HREOC proceedings (November 1997-February 1998)
[31]
4.3 The Victims Compensation proceedings (August 1998-November 2001)
[32]
4.3.1 The first Victims Compensation proceedings (not relied upon as vexatious)
[32]
4.3.2 The second Victims Compensation proceedings
[35]
4.4 The Detinue proceedings (October 1998-August 2000)
[39]
4.5 The Tenancy proceedings (November 1998-April 2009)
[43]
4.5.1 The proceedings in the Residential Tenancies Tribunal (not relied upon in support of the vexatious proceedings order otherwise than as background)
[43]
4.5.2 Subsequent proceedings arising from the RTT proceedings
[44]
4.5.3 Subpoena to the ATO and NSW Police and related challenges to costs
[46]
4.5.4 Defamation proceedings against the Commissioner of Taxation arising from publication of Mr Croker’s name in the bankruptcy proceedings in the court list
[58]
4.5.5 Judicial Review proceedings
[62]
4.6 The Dental proceedings (December 1998-August 2005)
[68]
4.6.1 Initial proceedings
[68]
4.6.2 Judicial review of decision of the Deputy Registrar of the High Court
[73]
4.6.3 Interlocutory proceedings regarding photocopying costs
[79]
4.6.4 The order for security for costs in Mr Croker’s appeal from Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34
[81]
4.7 The Credit proceedings (July 1999-February 2001)
[86]
4.8 The Social Security proceedings (August 1999-January 2009)
[90]
4.8.1 The social security proceedings regarding the application for an advance on the Disability Support Pension
[90]
4.8.2 The social security proceedings regarding refusal of the Disability Support Pension
[95]
4.8.3 The social security proceedings regarding the Newstart Allowance and Education Entry Payment
[103]
4.8.4 The social security proceedings regarding the Newstart allowance and activity agreement with MAXNetwork
[107]
4.8.5 The social security proceedings regarding the Disability Support Pension and Education Supplement – First Proceedings (not relied upon as vexatious)
[112]
4.8.6 The social security proceedings regarding the Disability Support Pension and Education Supplement – Second Proceedings
[115]
4.8.7 The social security proceedings regarding the Department of Employment and Workplace Relations
[120]
4.9 The Mobile Phone proceedings (March 2000-September 2005)
[123]
4.9.1 The second application in the Federal Court
[130]
4.9.2 The proceedings in the CTTT with respect to the second mobile phone
[132]
4.10 The Jewellery proceedings (March 2002-June 2003)
[138]
4.10.1 Background
[138]
4.10.2 Further proceedings in the Jewellery proceedings alleged to be vexatious
[141]
4.11 The Discrimination proceedings (February 2003-September 2009)
[144]
4.11.1 Sydney Institute of TAFE and University of Technology proceedings
[144]
4.11.2 Department of Education and Training (NSW) proceedings
[152]
4.12 Miscellaneous Consumer, Trader & Tenancy Tribunal proceedings (July 2004-October 2004)
[157]
4.13 The Cufflinks proceedings (July 2004-June 2011)
[159]
4.13.1 Background
[159]
4.13.2 The initial proceedings in the High Court
[161]
4.13.3 The first Federal Court Cufflinks proceedings
[163]
4.13.4 The second Federal Court Cufflinks proceedings: Croker v Commonwealth of Australia [2008] FCA 452
[177]
4.13.5 Bankruptcy notice arising from unpaid costs orders
[186]
4.14 The Credit Card proceedings (March 2005-August 2005)
[192]
4.15 The Ex Gratia Payments proceedings (2013-September 2014)
[194]
5 CONSIDERATION
[208]
5.1 Mr Croker’s constitutional claim
[208]
5.2 Are the preconditions to the exercise of the discretion to make a vexatious proceedings order satisfied?
[212]
5.2.1 Has Mr Croker engaged in vexatious proceedings?
[212]
5.2.2 Has Mr Croker “frequently” instituted or conducted vexatious proceedings?
[223]
5.3 Should the discretion be exercised so as to make a vexatious proceedings order against Mr Croker and in what terms?
[224]
5.3.1 Factors relevant to the exercise of discretion
[224]
5.3.2 Should the discretion be exercised here to make the vexatious proceedings orders sought?
[229]
6 CONCLUSION
[233]
1. INTRODUCTION
The applicant seeks orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) precluding Mr Clayton Robert Croker from instituting proceedings in this Court without prior leave of the Court, and staying or dismissing all pending proceedings before the Court. The application is based upon evidence of a very substantial number of proceedings instituted or conducted by Mr Croker from 1997 to date which are said to be vexatious for the purposes of s 37AO, including interlocutory proceedings, appeals and applications for leave or special leave to appeal.
The Registrar has standing to bring this application under s 37AO(3)(b) of the FCA Act.
Mr Croker resists the making of the orders and filed written submissions in advance of the hearing in response to those filed by the Registrar. At the hearing of the application, Mr Croker simply adopted his written submissions without further elaboration.
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 SCHEME
3.1 General principles
Access to the courts to seek remedies as a consequence of an alleged infringement of a person’s rights is a fundamental right under the Australian legal system: Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 (Kowalski (FCAFC)) at 162 [58] (the Court). Nonetheless, that principle is not absolute. Provisions such as those contained in Part VAAA of the FCA Act for the making of vexatious proceedings orders are underpinned by a countervailing policy to protect “the court’s own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance”: Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at 389 [52] (Sackville J); see also Kowalski (FCAFC) at 162-163 [59] (the Court). “Linked with that objective”, as Sackville J also pointed out, “is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings” (ibid). The seriousness of any interference with a person’s capacity to access the courts means, however, that such orders are not lightly made: Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2007] FCA 1069; (2007) 242 ALR 370 at 380 [44] (Finn J). As the Full Court held in Kowalski (FCAFC) at 162 [58], the remedy is an extreme one.
Part VAAA of the FCA Act was inserted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (the Amending Act) with effect from 11 June 2013: see further Ferdinands v Chief of Army [2013] FCAFC 103 at [10] (Allsop CJ (with whom the other members of the Court agreed)). The Amending Act established an essentially consistent scheme for all four federal courts. In so doing, the Amending Act gives effect to a model law developed by the Standing Committee of Attorneys-General on vexatious proceedings which has also been implemented to date in other jurisdictions including Queensland and New South Wales in substantially the same terms.
A vexatious proceedings order may include “an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court” and any other order that the Court considers appropriate in relation to the person: s 37AO(2), FCA Act. Importantly, such orders are made to shield other litigants from harassment and to protect the Court from the expense, burden and inconvenience of baseless and repetitious suits, but not to impose punishment for litigious misconduct: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (Teoh (No 8)) at [56] (the Court); Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan (No 2)) at [3] (Perram J), cited with approval in Attorney-General (NSW) v Gargan [2010] NSWSC 1192 (Gargan) at [8] (Davies J).
A “vexatious proceedings order” may be made under s 37AO(1) of the FCA Act if the Court is satisfied that:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
3.2 What is a “vexatious proceeding”?
Section 37AM(1) of the FCA Act defines “vexatious proceeding” to include:
(a)a proceeding that is an abuse of the process of a court or tribunal; and
(b)a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d)a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
These categories substantially overlap, as Adamson J pointed out in Attorney-General (NSW) v Chan [2011] NSWSC 1315 (Chan) at [33] with respect to the equivalent provision in the Vexatious Proceedings Act 2008 (NSW) (the NSW Act).
As to s 37AM(1), it has recently been said that “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues”: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Nonetheless, certain categories of abuse of process are well settled. As McHugh J observed in Rogers v The Queen (1994) 181 CLR 251 (Rogers) at 286 (in dissent but not on the issue of principle):
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.
As his Honour then observed, any procedural step taken in the course of proceedings is capable of being an abuse of the court’s process: ibid.
To similar effect, Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 that:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose,as well as proceedings that are “frivolous, vexatious or oppressive”. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to “defined and closed categories” because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of “abuse of process” is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
I note that Basten JA in Viavattene v Attorney-General (NSW) [2015] NSWCA 44 (Viavattene) at [19] raised a question as to whether ss 6(b) and 6(d) of the NSW Act, which are equivalent to ss 37AM(1)(b) and 37AM(1)(d) of Part VAAA of the FCA Act, require a subjective element of improper purpose and queried whether an objectively demonstrated outcome without that further element would suffice. In her separate reasons at [3]-[4], Beazley P did not consider that this was necessarily the correct construction of s 6(d) and pointed to two decisions where para (d) had been construed as not requiring the Court to determine whether the defendant in proceedings under the NSW Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”, namely, Pascoe v Liprini [2011] NSWSC 1484 at [10] (Adamson J) and Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] (Slattery J). In any event, her Honour considered at [4] that:
…if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to “achieve another wrongful purpose” requires an intentional element.
However the construction of s 6(d) was not raised on the appeal and neither Beazley P nor Basten JA therefore considered that this was an appropriate occasion on which to determine the question: Viavattene at [5] (Beazley P) and [20] (Basten JA). Nor is it necessary for me to determine it here as, for the reasons developed below, on any view Mr Croker has instituted and conducted proceedings which constitute an abuse of process and are therefore caught by s 37AM(1)(a) of the FCA Act. A classic example is Mr Croker’s attempts to relitigate issues already determined in earlier proceedings.
Turning then to what constitutes a “proceeding”, the term is defined in s 4 of the FCA Act to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. This means, as Adamson J pointed out in Chan at [34], [67] and [70], that the Court may have regard to baseless applications or appeals or repeated oral applications with no proper basis. It follows, that an application for an extension of time within which to appeal or seek leave to appeal, being for example incidental proceedings in connexion with a proceeding, would constitute a “proceeding”, as would, for example, an application for the issue of a subpoena.
Furthermore, the word “institute” as defined in s 37AM(1)(a) includes “for civil proceedings – the taking of a step or the making of an application that may be necessary before proceedings can be started against a party”. A request for a bankruptcy notice to be issued by the Official Receiver is an example of the taking of a step necessary before proceedings in a court may be started against the debtor by way of a creditor’s petition, as I held in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [103]. A further example of such a step is Mr Croker’s request, as an undischarged bankrupt, for the consent of the Trustee in Bankruptcy to file the application for special leave to appeal to the High Court in the ex gratia payments proceedings: see at [200] below. Furthermore, as the Registrar submits, the reference in s 37AO(1) to conducting proceedings permits the Court to have regard to the way in which proceedings are carried on after they have been instituted irrespective of whether or not they were regularly and appropriately commenced.
Finally, in determining whether the criteria in s 37AO(1) are satisfied, I am not limited to considering the decisions of the Federal Court but may have regard under s 37AO(6) to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
In this regard, as Adamson J said in Chan at [39]:
While the Court needs to form its own view about each piece of litigation relied on… the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: [Attorney-General (NSW) v] Wilson [[2010] NSWSC 1008] at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7].
As such, it is appropriate among other things for me to have regard to the decision in Attorney-General (NSW) v Croker [2010] NSWSC 942 (Croker (NSWSC)) in which Fullerton J determined that it was appropriate to make a vexatious proceedings order pursuant to s 8(7)(b) of the NSW Act against Mr Croker. That order prevented Mr Croker from instituting proceedings in New South Wales other than by leave of an appropriate court under the NSW Act. An application for leave to appeal from that decision was dismissed with costs by the Court of Appeal on the grounds that nothing raised by Mr Croker cast any doubt on the decision and there was no basis for considering that there is any prospect of success in the appeal: Croker v Attorney-General (NSW) [2010] NSWCA 355 (Allsop ACJ (as his Honour then was) and McColl JA).
3.3 “frequently”
The power in s 37AO(1)(a) is enlivened only if it can be said that Mr Croker instituted or conducted vexatious proceedings “frequently”. As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 (Wilson) at [11]:
It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law – see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported – Supreme Court NSW, Holland J – 29 March 1978).
Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rr 21.1 and 21.2 of the Federal Court Rules 1979 (Cth) (the Federal Court Rules) which required that vexatious proceedings have been conducted “habitually and persistently”, and did so deliberately: Potier v Attorney-General (NSW) [2015] NSWCA 129; (2015) 89 NSWLR 284 (Potier) at 310-311 [114]-[115] (Leeming JA). The previous test had been said to imply “more than great frequency”, the word “‘[h]abitually’ suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 (Roden J); see also Kowalski (FCAFC) at 163 [65] (the Court).
The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Gargan at [7] (Davies J); see also Wilson at [12] (Davies J); Jones v Cusack (1992) 109 ALR 313 at 315 (Toohey J); and Chan at [37] (Adamson J). Thus, the Court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue already determined against the person: Fuller v Toms [2013] FCA 1422 at [77] (Barker J). Similarly, in explaining the previous requirement that vexatious proceedings be instituted “persistently”, the Full Court in Kowalski (FCAFC) at 164 [67] approved the statement of the New Zealand Court of Appeal in Brogden v Attorney-General (NZ) [2001] NZAR 809 at [21] that:
What constitutes institution of such proceedings “persistently” will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication.
In short, as Leeming JA recently explained in Potier at 311 [116], “both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.”
4. ANALYSIS OF MR CROKER’S PRIOR LITIGATION
4.1 Introduction
It is necessary to analyse the history of litigation by Mr Croker in the period 1997 to date in order to consider whether the proceedings on which the Registrar relies as vexatious are properly characterised as such and whether vexatious proceedings were frequently instituted or conducted. This analysis is also relevant to the exercise of discretion in which, as I later explain, the extent of proceedings not characterised as vexatious should also be taken into account.
In preparing this analysis, I have derived assistance from the careful and comprehensive analysis of Mr Croker’s litigation history in the period 1997-2010 prepared by Fullerton J in Croker (NSWSC). This formed the basis of her Honour’s conclusion that a vexatious proceedings order should be made so as to preclude Mr Croker from litigating in New South Wales courts without leave. Further, a substantial part of the evidence of prior litigation before me was taken from the bundle of evidence before her Honour and that evidence has been sorted substantially into the same groupings. However, none of this relieves me of the obligation to consider the evidence for myself and ultimately to reach my own conclusion.
The Registrar’s evidence demonstrates a “sprawling history of litigation” by Mr Croker, as counsel for the Registrar described it, across state and federal courts and tribunals, involving many and different parties and subject matter. It may conveniently be grouped into the broad categories adopted by the Registrar in chronological order by reference to date of commencement as follows:
(1)HREOC proceedings (November 1997-February 1998): appeal against a decision of the Human Rights and Equal Opportunity Commission dismissed due to lack of jurisdiction;
(2)Victims Compensation proceedings (August 1998-November 2001);
(3)Detinue proceedings (October 1998-August 2000);
(4)Tenancy proceedings (November 1998-April 2009): dispute arising from Mr Croker’s eviction from certain premises and leading to related proceedings in relation to, among other matters, subpoenas issued to the Commissioner of Police and Commissioner of Taxation, bankruptcy applications arising from costs orders against Mr Croker, defamation proceedings against the Commissioner of Taxation by Mr Croker by reason of the bankruptcy proceedings having been published, and a claim for damages against the Commissioner of Taxation arising out of the Commissioner’s attempts to bankrupt Mr Croker;
(5)Dental proceedings (December 1998-August 2005): claim against a dentist for damages alleging misconduct in repairing fillings, and related proceedings including in relation to orders as to an application in the High Court, the costs of the photocopying of documents produced by the High Court and an application for security for costs;
(6)Credit proceedings (July 1999-February 2001): proceedings against the Commonwealth Bank alleging, among other things, harsh and oppressive conduct, undue influence, and false and misleading conduct;
(7)Social Security proceedings (August 1999-January 2009): series of challenges to various decisions in relation to social security payments including the Disability Support Pension, a requested advance on a pension, and for the Pensioner Education Supplement payment to be backdated;
(8)Mobile phone proceedings (March 2000-September 2005): claim in relation to dissatisfaction with two mobile phones;
(9)Jewellery proceedings (March 2002-June 2003): claim in relation to a damaged ring valued at $400;
(10)Discrimination proceedings (February 2003-September 2009): disability discrimination claim against Sydney Institute of TAFE and University of Technology, Sydney;
(11)Miscellaneous Consumer, Trader and Tenancy Tribunal (CTTT) proceedings (July 2004-October 2004): claims in the CTTT in relation to initials engraved on pen and overcoat;
(12)Cufflink proceedings (July 2004-June 2011): claim against the High Court arising from the purchase of commemorative cufflinks from the High Court alleged to have tarnished;
(13)Credit Card proceedings (March 2005-August 2005): claim in relation to fee for difficulties with EFTPOS facilities at a supermarket;
(14)Ex Gratia Payments proceedings (May 2013-September 2014).
Litigation within some of these categories has been further subdivided, such as in the case of the Tenancy proceedings, where the substantive proceedings “spin off”, as counsel for the Registrar described it, into a series of related proceedings such as those involving the recipients of subpoenas issued by Mr Croker.
4.2 The HREOC proceedings (November 1997-February 1998)
In November 1997 the defendant commenced proceedings in the Administrative Appeals Tribunal (AAT) for review of the decision of the President of the Human Rights and Equal Opportunity Commission (HREOC) not to inquire into his complaint of disability discrimination under the Disability Discrimination Act 1992 (Cth). The application for review was dismissed by Senior Member Hallowes on 18 February 1998 on the ground that the AAT lacked jurisdiction to review the decision: Croker v Human Rights and Equal Opportunity Commission [1998] AATA 160.
4.3 The Victims Compensation proceedings (August 1998-November 2001)
4.3.1The first Victims Compensation proceedings (not relied upon as vexatious)
On 14 August 1998, a Victims Compensation Assessor refused Mr Croker’s application for compensation for alleged psychological injuries received as part of an assault and theft that occurred in March 1997 on the ground that the compensable psychological injury had not been established. Mr Croker appealed that decision to the Victims Compensation Tribunal. The Tribunal dismissed the appeal on 10 February 1999 given “the absence of any medical evidence that the applicant has suffered a psychiatric or psychological disorder”: Appeal of Clayton Robert Croker – Victims Compensation Tribunal Application No. 33909.
Mr Croker sought leave to appeal against the Tribunal’s decision in the District Court of New South Wales (the District Court). While leave to appeal was granted, Garling DCJ dismissed the appeal on the grounds that Mr Croker’s condition did not fall into the category of an injury pursuant to the Victims Compensation Act 1996 (NSW) (Croker v Victims Compensation Fund Corporation [1999] NSWDC 7).
Mr Croker instituted an appeal against the District Court decision in the Supreme Court of New South Wales (the Supreme Court) seeking $150,000 in damages. Those proceedings were dismissed by Registrar Irwin on 14 August 2000 with no order as to costs. No part of the first set of victims compensation proceedings are characterised by the applicant as vexatious.
4.3.2The second Victims Compensation proceedings
On 7 September 2000, a Victims Compensation Assessor refused Mr Croker’s application for compensation based on an alleged assault in and outside a hotel in Surry Hills. Police had attended the scene but Austrian tourists present gave a different account and the police could not find any person to corroborate Mr Croker’s version of events. As Mr Croker’s version of the incident was not able to be corroborated, the assessor determined that it was not possible to establish an act of violence on the balance of probabilities and the application was dismissed. This application and decision is not characterised by the applicant as a vexatious proceeding.
Mr Croker appealed the Assessor’s decision to the Victims Compensation Tribunal on grounds that included that the determination was a breach of the Justices Act 1902 (NSW) and Police Service Act 1990 (NSW). A psychologist’s report in evidence before the Tribunal stated that “Mr. Croker appears confused when describing the numerous assaults he has been subjected to. These inconsistencies raise queries as to the validity of his claims”. On 6 March 2001 the Tribunal dismissed the appeal, finding that there was no medical evidence establishing that Mr Croker had sustained a compensable injury: Victims Compensation Tribunal Application no. 62998.
Mr Croker then instituted proceedings in the District Court seeking to have the determination remitted back to the Victims Compensation Fund Corporation for redetermination with additional evidence. Boyd-Boland ADCJ dismissed the appeal with costs, finding that there was no evidence beyond that available before the Tribunal which would have any bearing on the matter and the evidence supported the Tribunal’s decision: Croker v Victims Compensation Fund Corporation – District Court matter no. 3890/01. Boyd-Boland ADCJ also noted that Mr Croker’s ground of appeal that the determination “aggrieved” Mr Croker was not a basis for success in the motion.
On 2 November 2001, Mr Croker filed a summons for leave to appeal to the Court of Appeal from the District Court’s decision. On 4 February 2002, Registrar Irwin dismissed the summons as incompetent on the motion of the Victims Compensation Fund Corporation and ordered that Mr Croker pay the costs of the respondent’s motion (Court of Appeal matter no. 40588/01).
4.4 The Detinue proceedings (October 1998-August 2000)
By statement of claim dated 26 October 1998, Mr Croker instituted proceedings in the Local Court in detinue for $40,797 against Mr Ewen (Croker v Ewen - matter no. 12532/98): see also the related Tenancy proceedings at Part 4.5 below. On 15 June 1999, Mr Ewen commenced separate proceedings by way of filing an application to dispose of Mr Croker’s uncollected goods in the Local Court. On 20 July 1999, Chief Magistrate Landa ordered that Mr Croker attend the premises of Mr Ewen on 30 July 1999 to collect the goods and awarded costs against Mr Croker (Ewen v Croker - matter no. 20206524/99/2).
On 30 July 1999, Mr Croker filed a summons in the Supreme Court seeking an order that: (1) both Local Court proceedings be removed from the Local Court to the Supreme Court; (2) Mr Ewen pay the sum of $100,000; (3) the order of the Local Court be set aside until Mr Croker was able to accommodate the chattels without fear of loss or damage; and (4) damages (Croker v Ewen – matter no. 11846/99). Pursuant to a notice of motion filed by Mr Ewen on 13 September 1999, Dowd J dismissed Mr Croker’s summons with costs. On 24 September 1999, Mr Croker sought to appeal that decision.
On 20 July 2000, Giles JA heard an application by Mr Croker to set aside a direction by the Registrar that Mr Croker provide an address for service which complies with the Supreme Court Rules 1970 (NSW) (Supreme Court Rules), to replace Mr Croker’s address for service, which at the time was the address for the Darlinghurst Post Office. An application in substantially the same terms and heard on the same day was made in the Dental proceedings (see below at [70]). Giles JA held that a post office was not an address for service which complied with the Supreme Court Rules, and ordered that Mr Croker’s notice of motion be dismissed with costs (Croker v Ewen; Croker v Challoner [2000] NSWCA 186 at [5] and [10]).
On 18 July 2000, Mr Ewen filed a notice of motion seeking to have the proceedings declared incompetent and that the appellant be declared a vexatious litigant. The following month, the appeal was dismissed as incompetent and orders were made that no further documents be accepted for filing until Mr Croker provided a proper address for service, or until the decision of Giles JA was overturned.
4.5 The Tenancy proceedings (November 1998-April 2009)
4.5.1The proceedings in the Residential Tenancies Tribunal (not relied upon in support of the vexatious proceedings order otherwise than as background)
By an application in the Residential Tenancies Tribunal (RTT) dated 20 November 1998, Mr Croker sought orders that the landlord present terms of agreement and a premises condition report in order to stop an “unlawful eviction”: RTT matter no. 98/36532. On 4 December 1998, the RTT dismissed the application because it was not satisfied that the grounds required to make the orders sought had been established. It found that the premises concerned operated as a boarding house (the Boarding House premises) and that the RTT had no jurisdiction in those circumstances to make the orders sought. Mr Croker applied to the RTT to vary or set aside the order on 17 December 1998 on the grounds that he was “aggrieved by the decision and supporting documentation was not produced at the hearing”. Deputy Registrar Haertsch dismissed that application on 18 December 1998 on the ground that s 110 of the Residential Tenancies Act 1987 (NSW) (RT Act) did not provide for merits review of the original decision: RTT matter no. 98/39116. The reasons, however, noted that appeals against a Tribunal decision on a matter of law are heard by the Supreme Court, referring to s 107 of the RT Act. The applicant does not rely upon these initial proceedings in the RTT as vexatious proceedings but only as background to subsequent proceedings which are relied upon.
4.5.2Subsequent proceedings arising from the RTT proceedings
By summons filed in the Supreme Court on 11 January 1999, Mr Croker brought proceedings against his former landlord and the RTT for orders that his personal property in detention be returned, that the RTT orders be set aside, for the sum of $100,000 and for further unspecified damages. Barr J dismissed the summons on 14 July 1999 with costs holding that the Supreme Court had no jurisdiction to enquire into the process by which the RTT accepted the evidence that the premises were a boarding house, any appeal being only on a question of law, and the conclusion that the Tribunal lacked jurisdiction was therefore inevitable; nor was the Court satisfied that Mr Croker had suffered any damage: Croker v Perks & Anor [1999] NSWSC 752, especially at [31]-[40].
Mr Croker filed a notice of appeal without appointment on 21 July 1999, and with appointment on 15 October 1999, seeking a return of the goods “in detention of the appellant to the appellant”, that “[t]he appellant pay the sum of $150,000 in damages” and that the respondent pay the costs of “the several appeals”. On 8 November 1999, the Registrar wrote to Mr Croker advising that the appeal may not be valid and that leave may be required to appeal as the matter may not involve an amount in issue of at least $100,000. In April 2000 the Court of Appeal struck out the appeal as incompetent on the respondent’s motion, with each party to pay their own costs (Court of Appeal matter no. 40556/99).
4.5.3Subpoena to the ATO and NSW Police and related challenges to costs
In the course of the Tenancy proceedings in the Supreme Court, Mr Croker issued a subpoena to the New South Wales Police Service (NSW Police) and sought a motion seeking compliance following partial compliance with the subpoena by the NSW Police. While access to discrete documents was permitted, on 20 April 1999 Adams J quashed the remainder of the subpoena on the ground that the categories amounted to a “mere fishing expedition” in seeking production of documents relating to the private affairs of persons unconnected with the litigation or were not otherwise relevant and that the subpoena lacked a proper forensic purpose (Croker v Perks - matter no. 3003/99). Mr Croker did not attend the hearing. The applicant does not rely upon the subpoena and motions the subject of the decision of Adams J as vexatious proceedings.
However, later steps are relied upon in support of the vexatious proceedings order. In this regard, Mr Croker applied for leave to appeal the decision of Adams J quashing the subpoena. That application was decided on the papers by consent. Handley JA dismissed the application with costs, holding that “the proposed appeal does not appear to be reasonably arguable and indeed in my view the judgment under challenge was correct”: Croker v Commissioner of Police - matter no. 40303/99 at [3]. In due course, the High Court refused an application for special leave to appeal with costs on 26 May 2000, finding that “…there is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal”: Croker v Commissioner of Police of New South Wales S236/1999 [2000] HCATrans 272 (26 May 2000).
On 3 March 1999, before Barr J heard and determined the appeal, Mr Croker also issued a subpoena to the Australian Taxation Office (ATO) seeking production of taxation records showing the status of taxation of the Boarding House premises and employment of employees. The Deputy Commissioner of Taxation applied to set aside the subpoena on the ground that the proceedings did not involve the carrying into effect of the purposes of any tax laws and therefore were immune from production under s 16(3) of the Income Tax Assessment Act 1936 (Cth). That application was upheld by Dunford J and the subpoena set aside: Croker v Perks [1999] NSWSC 296 at [6]-[8]. The notice of motion filed by Mr Croker for compliance with the subpoena was also dismissed. Dunford J ordered that Mr Croker pay the costs of both his own and the Deputy Commissioner of Taxation’s motions: Croker v Perks [1999] NSWSC 296 at [10]. The subpoena and motions the subject of the decision by Dunford J are not relied upon by the applicant here as vexatious proceedings.
However, Mr Croker again sought leave to appeal the decision. That application was dismissed with costs by Sheller and Stein JJA on the ground that the reasons of Dunford J were “clearly right” and “[a]n appeal in this matter has no prospects of success”: Croker v Commissioner of Taxation - matter no. 40247/99 at [9] (emphasis added). The High Court similarly dismissed Mr Croker’s application for special leave to appeal with costs, with Gummow J stating that “[a]ny appeal would enjoy no prospects of success, given the long-established body of authority respecting the operation of section 16 of the Income Tax Assessment Act”: Croker v Commissioner of Taxation of the Commonwealth of Australia S186/1999 [2000] HCATrans 104 (17 March 2000) (emphasis added).
In assessing party/party costs in favour of the Commissioner of Taxation for $8,055.65 in the proceedings related to the subpoena (Supreme Court matter no. 30003/99 and Court of Appeal matter no. 40247/99), the costs assessor found that Mr Croker’s submissions on costs were “nonsensical though it seems that he is suggesting that because he was in a parlous financial state that this in some way prevents me determining the reasonableness of the costs sought by the applicant. As I say, such a submission is completely wrong at law and makes no sense.” On 24 November 2000, Mr Croker applied to have the determination of the costs assessor reviewed. However the application could not proceed as Mr Croker failed to comply with the mandatory notice requirement under s 208KA(5) of the Legal Profession Act 1987 (NSW): Letter dated 17 January 2001 from the Supreme Court of New South Wales Costs Assessment Section, Costs Assessment File Number C/L 91448/00.
By summons filed on 31 January 2001 and amended on 12 March 2001, Mr Croker sought orders among other things that the determination of the costs assessor be set aside and that the Commissioner of Taxation pay damages for intimidation of Mr Croker: Supreme Court matter no. 10270/2001. On 21 March 2001, Master Malpass dismissed Mr Croker’s summons with costs on the basis that the Court lacked power to review a determination made by a costs assessor; nor did the Court have power to extend the time within which an application could be made for review by a panel, Mr Croker being out of time for making any such application (Croker v Commissioner of Taxation [2001] NSWSC 188 at [4]-[5]). The Master also observed that in any event the grounds of appeal relied on by Mr Croker were irrelevant, and “there is nothing before the court which would suggest that there is any basis arising from the merits of the case which would justify either the granting of leave or an extension of time to bring an application for leave. The delay in the bringing of these proceedings is left unexplained”: ibid at [8].
On 24 July 2001, Mr Croker filed a summons for leave to appeal from Master Malpass’ decision (Court of Appeal matter no. 40272/2001). This was dismissed with costs on 23 November 2001 by Priestley and Heydon JJA. On 29 November 2001, Mr Croker filed a notice of motion seeking an order that the Full Court of the Supreme Court hear and grant leave to appeal, that the decision of Priestley and Heydon JJA be set aside, and that Mr Croker be awarded $200,000 in compensatory damages. On 25 February 2002, the motion was dismissed.
The costs awarded to the Commissioner of Taxation in the Supreme Court proceedings were not met by Mr Croker, and bankruptcy notices were then issued. In proceedings not relied on by the applicant as vexatious, Mr Croker challenged the bankruptcy notices in the Federal Magistrates Court where Registrar Hedge set aside the notices and made an order for costs of $100 in favour of Mr Croker. However, on 11 June 2002, Mr Croker sought an extension of time within which to file an application for review of the Registrar’s decision on costs. The other elements of his application were that he sought orders: (1) to set aside the costs order made by Registrar Hedge and order costs in accordance with the prescribed scale of costs under the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules), or alternatively, costs under the Federal Court Rules as assessed and if necessary taxed; (2) that the Deputy Commissioner of Taxation be restrained from issuing a further bankruptcy notice against him; and (3) damages in the sum of $350,000. The application was dismissed with costs by Driver FM in Croker v Commissioner of Taxation [2002] FMCA 128. First, his Honour held with respect to the application for review of the costs order that “the applicant has not advanced an arguable case in support of his application” (at [17]). Secondly, with respect to the additional relief sought, his Honour held that:
10.The applicant has sought to advance some fairly adventurous propositions in addition to the simple application to review the costs order and nothing has been put forward at this stage to support the application insofar as it relates to the proposed restraining order and the damages claim. It would in the ordinary course be improbable, although not impossible, that I might be convinced to make a permanent restraining order preventing the issue of a bankruptcy notice. It is also improbable, although not impossible, that I might be persuaded to entertain a damages application in the exercise of the Court’s accrued jurisdiction.
11.It does seem, however, a tenuous proposition that those matters could be properly ventilated in a simple review application on a costs order where the principal issue in dispute between the parties has already been finally resolved. That issue was whether the bankruptcy notice formally issued to the applicant should be set aside. That issue having been finally resolved it is unlikely in my view that the interests of justice would be served by having a much larger issue ventilated on an application to review the registrar’s costs order.
An appeal from the decision of Driver FM was dismissed with costs, Madgwick J holding that Mr Croker “had no reasonable prospects of success in upsetting the costs order made by the Registrar [for $100], and that Federal Magistrate Driver was correct in refusing to extend time”: Croker v Commissioner of Taxation [2002] FCA 1432; (2002) 124 FCR 286 at [9].
Separately, a certificate of taxation was issued to retrieve the costs of $5,781.98 awarded in the High Court in favour of the Commissioner of Taxation referred to above at [49]. This was registered as a civil judgment in the Local Court pursuant to s 41 of the Bankruptcy Act 1966 (Cth) in the amount of $5,837.98, which included the Local Court registration fee (Local Court matter no. 5908/01). The outstanding debt led to a bankruptcy notice being issued, which Mr Croker sought to challenge in the Federal Court. In Croker v Commissioner of Taxation [2002] FCA 1157, Moore J held the judgment obtained in the Local Court was legally flawed because s 14 of the High Court of Australia Act 1979 (Cth) and s 105 of the Service and Execution of Process Act 1992 (Cth) did not provide a mechanism for the enforcement of High Court judgments by registration in a State Court. However, Moore J was satisfied that a debt was clearly owed, and held that the bankruptcy notice should not be set aside merely because the judgment in the Local Court was obtained by an inappropriate procedure (at [15] and [20]). Mr Croker’s application to set aside the bankruptcy notice was dismissed with costs on 18 September 2002.
Mr Croker was successful in his appeal from Moore J’s decision to the Full Court of Federal Court in Croker v Commissioner of Taxation [2003] FCAFC 23. In that decision delivered 25 February 2003, the Full Court held that the registration was a nullity, and that the primary judge had erred in regarding registration of the certificate “as effective until such time as it was set aside ‘as a judgment’ of the Local Court” rather than a mere clerical entry in the records of the Court (at [10]). The Full Court allowed the appeal, setting aside the bankruptcy notice. Mr Croker subsequently sought an order for costs in the appeal, which was dismissed on 27 March 2003 on the basis that there had been no disbursements in the matter, given that Mr Croker’s court fees had been waived at all times and that he had prepared his own litigation (Croker v Commissioner of Taxation [2003] FCAFC 66 at [3] and [4]). Each of the proceedings relating to the certificate of taxation registered in the Local Court as a civil judgment are not relied on by the applicant as vexatious proceedings.
On 12 December 2003, the High Court heard Mr Croker’s application for special leave to appeal the decision of Madgwick J in Croker v Commissioner of Taxation [2002] FCA 1432; (2002) 124 FCR 286 refusing an extension of time to review the $100 costs order (see above at [54]) together with his application for special leave from the Full Court’s decision to refuse costs in his appeal from Moore J’s decision in Croker v Commissioner of Taxation [2003] FCAFC 66 (see above at [56]). Mr Croker submitted that self-represented litigants “if successful should be awarded costs in circumstances where they are justified up to the amount that the respondent was successful or a solicitor or a legal practitioner would receive” (Croker v Commissioner of Taxation for the Commonwealth [2003] HCATrans 542 (12 December 2003)). Gummow and Heydon JJ were not satisfied that there were sufficient prospects of success in any application to reopen the decision in Cachia v Hanes (1994) 179 CLR 403; nor that there were otherwise reasonable prospects of success in either application for special leave. Mr Croker’s application for special leave in each matter was refused with costs.
4.5.4Defamation proceedings against the Commissioner of Taxation arising from publication of Mr Croker’s name in the bankruptcy proceedings in the court list
In April 2003, Mr Croker brought proceedings against the Commissioner of Taxation alleging defamation by way of causing Mr Croker’s name to be published in a bankruptcy application on the Federal Court’s website, in The Sydney Morning Herald’s law list and on the Court lists within the Law Courts Building. On 28 October 2003, Levine J dismissed the action as frivolous and “irremediably hopeless” pursuant to a motion brought by the Commissioner of Taxation: Croker v Commissioner of Taxation [2003] NSWSC 980 at [16]. Levine J also referred to the fact that Mr Croker had provided a post office as his address on the statement of claim, observing that, “[w]ere it necessary for me to come to a definitive conclusion, I would have no reservation in saying that the positing of a post office as an address could be viewed in the light of the history of this matter as I understand it, only as an exercise in deception to obviate the proper processes of this Court” (at [7]). The costs were assessed on 23 July 2004 at $12,972.30.
On 24 February 2004, Mr Croker sought leave to appeal from the decision of Levine J. This application was dismissed with costs by Giles and Hodgson JJA on 4 June 2004, holding that “the judge was plainly correct, and there are insufficient prospects of success in an appeal from his decision to warrant a grant of leave to appeal”: Croker v The Commissioner for Taxation of the Commonwealth of Australia - matter no. 41082/03 at [3] (Giles JA). Hodgson JA further explained that “[i]n no sense was the Court or the Sydney Morning Herald the agent of the opponent in this case” and in any event, the Court and The Sydney Morning Herald would have the benefit of the absolute privilege attaching to words spoken or written in the ordinary course of court proceedings (at [5]-[6]). In due course, Gummow and Kirby JJ refused Mr Croker’s application for special leave to appeal to the High Court with costs on 10 March 2005, holding that “[t]here is no reason to doubt the correctness of the decision of the primary judge or the Court of Appeal. The further complaint in the special leave application asserting the invalidity of the Defamation Act 1974 (NSW) has no substance” (Croker v Commissioner of Taxation [2005] HCATrans 137 (10 March 2005)).
Following Mr Croker’s non-compliance with the order for costs made by Levine J in Croker v Commissioner of Taxation [2003] NSWSC 980 (see above at [58]), the Commissioner of Taxation issued a further bankruptcy notice on 29 October 2004. On 29 November 2004, Mr Croker filed an application in the Federal Court seeking to have the notice set aside and an award of $1 million or other amount in “compensatory, exemplary and notional damages”. Mr Croker contended that the bankruptcy notice was invalid as it overstated the quantum of his debt to the Commissioner of Taxation by $63 plus interest, being the fee paid in the Local Court by the Commissioner of Taxation for the certificate to be registered. Hely J set aside the bankruptcy notice on this basis, but dismissed Mr Croker’s claim for damages: Croker v Commissioner of Taxation [2005] FCA 127; (2005) 145 FCR 150. With respect to the damages claim, Hely J held at 154 [19] that:
The nature of this claim is not particularised in the application, and it has not been shown to be, as the application suggests, an application made under the Bankruptcy Act. Mr Croker’s affidavit provides very little guidance as to the basis of the claim, although reference is made to a claim against the Commissioner for compensation for detriment caused by defective administration. The defective administration is presumably that the Commissioner has now issued three bankruptcy notices against Mr Croker, each of which has been set aside… Such a claim does not give rise to a cause of action known to the law.
The applicants do not rely on this proceeding as vexatious for the purposes of this application.
4.5.5Judicial Review proceedings
On 3 June 2004, Branson J dismissed an application filed by Mr Croker under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Croker v Commissioner for Taxation of the Commonwealth of Australia [2004] FCA 958. Despite her Honour identifying and discussing “at some length” deficiencies in Mr Croker’s original application at the first directions hearing and giving leave to amend the application, Mr Croker’s amended application did not identify a decision to which the ADJR Act applied (at [1] and [2]). Mr Croker’s application also sought $5 million in damages for negligence. However, Branson J held that the ADJR Act does not provide for the recovery of damages for negligence, and further that Mr Croker’s application gave “no hint of any basis upon which the respondent owed a duty of care to the applicant such as to give rise to a claim in damages for negligence”. Furthermore, while not raised in his application, Mr Croker raised at the hearing possible claims relating to malicious prosecution. In this regard Branson J held that “I am not satisfied that this proceeding should be maintained to allow Mr Croker at some later time to raise a claim touching on malicious prosecution” (at [5]). As Mr Croker had already been afforded one occasion to amend the application but the amended application did not address the problems with Mr Croker’s claims which had earlier been raised with him, Branson J held that no useful purpose would be served by granting further leave to amend, and the application was therefore dismissed with costs (at [7]).
Mr Croker sought an order dispensing with the requirement for an application for leave to appeal to be filed within seven days, and leave to appeal from the judgment of Branson J. That application was dismissed with costs on 3 August 2004 by Emmett J: Croker v Commissioner of Taxation [2004] FCA 1409. Emmett J held that “Mr Croker does not suggest that he has a cause of action under the ADJR Act. It is not clear at all precisely what claim he makes for damages. If he does have a claim for damages for negligence against the Commissioner, the appropriate course is to commence a proceeding by way of application and statement of claim” (at [4]). Emmett J found no error apparent in the judgment of Branson J and “no prospect of any success on the hearing of any appeal if leave were granted to file an application for leave to appeal out of time and leave to appeal were granted” (at [5]).
In separate judicial review proceedings, Mr Croker filed an application on 25 July 2005 claiming $10 million damages arising out of the bankruptcy notices which had been set aside by the Federal Magistrates Court, the Federal Court, and the Full Court of the Federal Court (see above at [53], [60] and [56] respectively). Mr Croker alleged that the proceedings in bankruptcy were made falsely and maliciously. Mr Croker further alleged that the Commissioner of Taxation had violated the Constitution and his constitutional right to procedural fairness, and that this involved a tortious interference with Mr Croker’s constitutional rights. By notice of motion filed on 30 September 2005 the Commissioner of Taxation sought to have the application struck out. On 6 April 2006, Cowdroy J dismissed Mr Croker’s application with costs on the ground that the Court lacked jurisdiction to entertain the claims (Croker v Commissioner of Taxation [2006] FCA 372 at [23]-[27]). Nor in any event did Cowdroy J consider that Mr Croker’s application and statement of claim disclosed any reasonable cause of action as none of the elements of a cause of action in tort were pleaded; the pleadings asserted conclusions and did not plead any material facts (ibid at [28]-[29]).
Mr Croker’s application for leave to appeal Cowdroy J’s decision was refused by Edmonds J on 8 June 2006. His Honour held that the draft notice of appeal “contains no arguable ground of appeal. I do not find that surprising because I am unable to identify any error in the judgment below” (Croker v Commissioner of Taxation [2006] FCA 720 at [3]).
On 12 March 2009, Moore J heard an application filed by Mr Croker alleging misfeasance in public office on the part of the Commissioner, and seeking relief by way of damages and interest. Moore J found that a similar application had been made and determined by Cowdroy J in his decision on 6 April 2006. Moore J considered there was no course open to him but to dismiss the application on the ground that the earlier decision had given rise to an issue estoppel and, in any event, he was bound to follow the judgment of Cowdroy J: Croker v Commissioner of Taxation for the Commonwealth of Australia [2009] FCA 275 at [2]-[3]. Mr Croker was ordered to pay the respondent’s costs on an indemnity basis on the ground that it should have been apparent to Mr Croker that the proceedings, being in substance of the same character as those heard and determined by Cowdroy J, would be dismissed and that his case was hopeless (at [4]).
Not satisfied with that result, Mr Croker sought leave to appeal from this decision. On 8 April 2009, Jagot J dismissed the application on the ground that Moore J’s decision was not attended by any real doubt and appears plainly correct (at [8]). Her Honour also ordered that Mr Croker pay indemnity costs on the basis that “[i]n the context and background of this matter, it must have been known to Mr Croker that this application for leave was hopeless and doomed to fail… This is a case where the proceeding should never have been brought” (Croker v Commissioner of Taxation [2009] FCA 353 at [15]-[16]).
4.6 The Dental proceedings (December 1998-August 2005)
4.6.1Initial proceedings
In proceedings instituted in the District Court on 15 December 1998, Mr Croker alleged professional misconduct on the part of a dentist who had treated Mr Croker for the renewal of old fillings in 1996-1998 and sought $100,000 in damages. By a statement of particulars dated 7 June 1999, Mr Croker claimed among other things that his pain and suffering resulted in “the procrastination of studies over a three-year period that [Mr Croker] undertook with the assistance of Federal Government loans and the use of a Disability Support Pension” and that the negligent acts by the defendant dentist had left Mr Croker in a position of financial uncertainty. Mr Croker filed an affidavit in response to a request from the defendant for further and better particulars. With respect to the affidavit, Sinclair ADCJ held that “apart from stating that he had been a patient of the defendant who had carried out some work on him and he suffered pain and discomfort, it does not direct itself to the basic simply [sic] questions in the request for particulars”: Croker v Challoner - District Court matter no. 9108/98. Further, Sinclair ADCJ held that “[t]he pleading, albeit prepared by the plaintiff in person, does not come within, to use a simple phrase, a bull’s roar of setting out those facts which would set out a cause of action and the particulars quite properly requested of the defendant have not been provided. I cannot see a clearer case of want of prosecution on the part of the plaintiff to properly prosecute his claim.” Mr Croker’s claim was struck out for want of prosecution with costs.
Mr Croker filed a summons in the Supreme Court in September 1999 seeking to set aside the decision of Sinclair ADCJ. Mr Croker also sought $120,000 plus damages. On 5 October 1999, Hidden J ruled that a single judge of the Supreme Court lacked jurisdiction to deal with an appeal and that Mr Croker required leave from the Court of Appeal if he wished to set aside the decision: Croker v Challanor - Supreme Court matter no. 1212/99. The application was struck out and no order was made as to costs. This application is not relied on by the applicant as a vexatious proceeding.
However, subsequent proceedings are relied upon. First, by notice of appeal filed in the Court of Appeal on 10 December 1999, Mr Croker sought to appeal from the decision of Sinclair ADCJ and $150,000 in damages. I note that Mr Croker had earlier filed a notice of appeal seeking to appeal the decision of Hidden J, although it appears that that notice of appeal was superseded. Secondly, on 11 May 2000, Mr Croker was directed by the Registrar to provide an address for service in compliance with the Supreme Court Rules by the following week, to replace the address previously provided (being the address for Darlinghurst Post Office, see above at [41]). Thirdly, by notice of motion filed 18 May 2000, Mr Croker sought to have this direction set aside and that he be permitted to use the Darlinghurst Post Office address as his address for service. On 20 July 2000, Giles JA ordered that the notice of motion be dismissed with costs (Croker v Ewen; Croker v Challoner [2000] NSWCA 186). His Honour held that the Post Office address did not comply with the Supreme Court Rules and no reason had been shown as to why Mr Croker’s residential address or some other address would be inappropriate. In the same judgment, Giles JA dismissed with costs Mr Croker’s oral application for an extension of time to appeal the decision of Sinclair ADCJ, holding that “Sinclair DCJ’s decision was unarguably correct, and the grounds of appeal make no sense as challenges to this 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” (at [18]).
Mr Croker sought to appeal the decision of Giles JA in the Court of Appeal by application filed 3 August 2000. The motion was dismissed with costs on 23 November 2000 in Croker v Challoner [2000] NSWCA 342. Powell JA (Mason P and Fitzgerald JA agreeing) held at [5] that:
Despite the fact that, in September 1999, Mr. Croker claimed to be a “student at law, Sydney Institute of Technology”, the form of that Statement of Claim demonstrates clearly that Mr. Croker has little, if any, acquaintance with, or understanding of, proper litigious practice and procedure and, still less, of the rules of pleading – the form of the Statement of Claim makes it well nigh incomprehensible, a fact which makes it impossible to discern what was the nature of the claim – in particular, whether it was based on a contract, or in negligence, or on some other cause of action – which Mr. Croker was seeking to advance against Dr. Challoner in the proceedings.
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…
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. CONSIDERATION
5.1 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 arise
5. 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.
Save for the substitution of different Acts for the Trade Practices Act 1976 (Cth), these paragraphs of the s 78B notice are in identical terms to those in the notice of a constitutional matter filed in Croker v Commonwealth of Australia [2011] FCAFC 25. As earlier explained at [188] above, the Full Court held that that notice was “unintelligible”. In my view, the s 78B notice in this case is rendered no more intelligible by the substitution of different laws, all but one of which do not appear even relevant to the resolution of the present application by the Registrar.
Nor do Mr Croker’s written submissions on the so-called constitutional issues take the matter any further. In his submissions, Mr Croker asserts that:
4. The Applicant further seeks that previous judgments of the superior Courts of record be circumvented in such a way that it distorts the interpretation of the act and the justice, fair and protective provisions of the Commonwealth of Australia Constitution Act 1900 (Cth) and in particular:-
Section 51, sub sections
(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;
and
(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;
…
10. The Applicants submission regarding a citizen of the Commonwealth of Australia right to access the judicial system and not to pursue matters on further legal rights of the appeal process is ludicrous and nonsensical as this right to bring proceedings and to pursue matters on appeal is a fundamental right that is protected by the just, fair and protective provisions of the Commonwealth of Australia Constitution Act 1900 (Cth) and contradiction to the outcome in Croker v Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1136 it also contradicts the matter of Croker v Commissioner of Taxation [2003] FCAFC 66 and several other matters which have been successful.
However, the fact, as Mr Croker submits at [10], that he was successful in certain of his matters does not of itself raise a constitutional issue even though it is a relevant factor in considering whether to make a vexatious proceedings order. The submissions by Mr Croker on the constitutional point are otherwise incomprehensible.
5.2 Are the preconditions to the exercise of the discretion to make a vexatious proceedings order satisfied?
5.2.1Has Mr Croker engaged in vexatious proceedings?
I accept that insofar as litigation explained in the history above was relied upon by the applicant as vexatious, it was correctly characterised as such for the purposes of s 37AO of the FC Act. In this regard, a number of repeated patterns are evident from a consideration of the manner in which Mr Croker has instituted and conducted this litigation over the past 17 years which are vexatious and/or an abuse of process in character. Most of these are conveniently set out in the reasons of Fullerton J in Croker (NSWSC) at [126]-[135] with which I agree.
First, it is apparent from this history that a very great number of proceedings were instituted without any reasonable grounds. For example, the defamation proceedings against the Commissioner of Taxation arising from the publication of Mr Croker’s name in the court list were dismissed as hopeless but pressed to the point of an application for special leave to appeal to the High Court (at [58]-[59] above). Without being exhaustive, other examples of hopeless proceedings lacking any merit (apart from discrete aspects) are the Dental proceedings including the application for judicial review of the decision of the Deputy Registrar of the High Court, the Credit proceedings, the Social Security proceedings, the Discrimination proceedings, the Cufflinks proceedings and the Ex Gratia proceedings.
Secondly, Mr Croker repeatedly commences proceedings on the basis of pleadings and documents which are so poorly drafted and deficient that they pay no regard to the rules as to pleadings or nature of the appeal in question and the respondents are unable to understand the case which they are expected to meet. For example, Mr Croker’s pleadings in the Dental proceeding were at various stages described as not “within … a bull’s roar” of setting out the material facts (quoted at [68] above), as making “no sense” (at [70] above) and as “well nigh incomprehensible” (at [71] above). In this regard, I agree with Fullerton J in Croker (NSWSC) at [131] that:
While I do not expect a self-represented litigant to draft pleadings with the skill of an experienced lawyer, this does not detract from the fact that in commencing proceedings the defendant assumed an obligation to produce documents that fairly permit other parties to understand the case being put against them. Even in the face of indulgence from some judicial officers who have pointed out the deficiencies in his pleadings, the defendant has consistently shown himself to be unable or unwilling to appreciate his obligation as a litigant.
Moreover, even when the deficiencies in his pleadings or fundamental difficulties with his claims are drawn to Mr Croker’s attention early in proceedings, he does not remedy the deficiencies, and disregards alternative courses pointed out to him which may avoid such difficulties. A striking example of this is Mr Croker’s continued pursuit of judicial review proceedings in the Federal Court against the Deputy Registrar of the High Court despite Allsop J at an early stage explaining that the most appropriate course was to ask a Justice of the High Court to undo the effect of the deemed abandonment of his application for special leave and the clear exposition of the options available to him in correspondence from the High Court: see above at [75]-[76] and [81]-[85]. The recent ex gratia payments proceedings also illustrate Mr Croker’s propensity to engage in conduct of this kind. It will be recalled that in those proceedings, Mr Croker doggedly pressed ahead with proceedings which he was on notice would fail notwithstanding that he could simply have made a fresh request for an ex gratia payment and retrieved for himself a copy of the unproduced letter from his computer: Croker v Minister for Finance [2013] FCAFC 154 at [14]-[15] (at [197] above).
Thirdly, Mr Croker’s litigation history demonstrates that he routinely refuses to accept adverse decisions, instituting appeals or applications for leave to appeal, even when it is apparent from the reasons sought to be challenged that his claims and applications are unsustainable and groundless. These include 13 unsuccessful applications for special leave to appeal to the High Court lodged since 1999. Such conduct is oppressive on respondents and shows blatant disregard for the resources of the Court and interests of other litigants. Nor is Mr Croker deterred by orders for costs against him with which he has a long history of non-compliance: see e.g. Bennett J in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 (discussed above at [147]-[149]). It can properly and fairly be inferred from such conduct that Mr Croker instituted and pursued such appeals and applications for collateral purposes.
Similarly, Mr Croker repeatedly attempts to relitigate the same dispute against the same parties where he has been unsuccessful on the first occasion. It is well established that conduct of this nature is generally an abuse of process. As the Full Court observed in Kowalski (FCAFC) at 163-164 [66]:
The hallmark of a vexatious proceeding will often, although not always, be one which seeks to re-litigate an issue that has been authoritatively determined in other proceedings. Where issues have previously been determined, it will usually follow that the institution of fresh proceedings with respect to the same issue will lack reasonable grounds.
The cufflinks proceedings are a glaring example of such conduct with repeated attempts by Mr Croker to institute or continue proceedings involving a single pair of cufflinks of little commercial value, as Fullerton J found in Croker (NSWSC) at [129]. Another example is the attempt in March 2009 to relitigate claims that the Commissioner of Taxation had pursued proceedings in bankruptcy falsely and maliciously against Mr Croker which had already been determined by Cowdroy J in April 2006 despite the fact that it must have been apparent to Mr Croker that the proceedings were hopeless: see at [64]-[67] above. Mr Croker’s repeated attempts to give the address of a post office as his address for service notwithstanding rulings by state and federal courts at first instance and on appeal that this did not comply with the relevant rules also demonstrate a complete disregard for court procedures and rulings. Mr Croker’s failure to provide a compliant address for service was characterised by Levine J in the defamation proceedings as “an exercise in deception to obviate the proper processes of this Court” (see above at [58]). Such disregard is also demonstrated by Mr Croker’s conduct in repeatedly making groundless allegations of bias against judicial or Court officers when seeking to appeal a decision in which he was unsuccessful. For example, in the proceedings for judicial review of the decision of the Deputy Registrar of the High Court in the Dental proceedings, Allsop J held that allegations of bad faith against a Deputy Registrar were “baseless and should not have been made, even by a litigant in person.”: see above at [77]. Similarly in the Department of Education and Training (NSW) proceedings, Buchanan J in refusing leave to appeal against the decision of Emmett J, held that there was no support of any kind for Mr Croker’s allegation of bias (see at [155] above).
In the fourth place, Mr Croker has repeatedly commenced litigation seeking damages that are manifestly disproportionate to any quantifiable loss and to the costs which other parties are required to incur in defending unmeritorious proceedings and, on occasion, in plainly inappropriate fora. The Jewellery proceedings in the Court of Appeal are an illustration, with Mr Croker seeking $150,000 compensation for damage to a ring which he conceded had a value of approximately $400. The damages sought with respect to the request for an advance payment in the sum of $500 for the disability pension are a further example, prompting, as Fullerton J in Croker (NSWSC) observed at [130], Callinan J’s acerbic but accurate comment on the application for special leave. The mobile phone proceedings relating to a single mobile phone purchased for $79 also illustrate the point. In the first set of mobile phone proceedings in the Federal Court, Mr Croker increased the damages to $100,000 after being advised of the cost consequences. When Mr Croker sought to commence separate proceedings against the same parties so as to circumvent earlier decisions against him, the claim for damages was increased to $3 million. The claims with respect to the second mobile phone were similarly extravagant and absurd.
Mr Croker also repeatedly commences litigation against particular parties which then “spin off” into a complex web of associated litigation by him against third parties. As Fullerton J held in Croker (NSWSC) at [127], “[i]t has been demonstrated that each set of the primary proceedings in the categories to which I have referred in this judgment has spawned a plethora of collateral litigation with only a tangential connection to the original claim for redress which also became progressively elaborated in the course of appellate review.” As her Honour then continued at [127], the clearest example is the tenancy proceedings. This gave rise to litigation against the Commissioner of Police and Commissioner of Taxation in the Supreme Court and the High Court in relation to the issue of subpoenas for the production of documents which not only had no relevant bearing on the original complaint, but were pursued long after the substantive proceedings were finalised. Protracted litigation also followed the service of a subpoena on the Commissioner of Taxation in these proceedings as the Commissioner of Taxation attempted to issue bankruptcy notices following the failure by Mr Croker to comply with costs orders against him. In turn, Mr Croker instituted proceedings against the Commissioner of Taxation in defamation and for judicial review under the ADJR Act for damages in the Federal Court. Similarly, proceedings by Mr Croker against his dentist in the District Court ultimately lead to Federal Court proceedings against the Deputy Registrar of the High Court. Notwithstanding limited success in a small proportion of these matters, in general, as Fullerton J found in Croker (NSWSC) at [128], these collateral proceedings were largely commenced without any reasonable grounds and conducted in a way so as to harass the other parties who were put to the expense of defending numerous unmeritorious applications.
Furthermore, the litigation history reveals a discernible pattern of unpaid costs orders which, as Fullerton J pointed out in Croker (NSWSC), resulted in some cases in repeated applications by understandably frustrated respondents for orders for security for costs. I agree with her Honour that “to cause others to incur legal costs in responding to hopeless applications, in circumstances where [Mr Croker] has blithely disregarded costs orders made against him is also an abuse of the courts’ processes” (Croker (NSWSC) at [134]). The failure to comply with orders as to costs is illustrative also of a general trend evident in Mr Croker’s conduct of failing to comply with court orders: see eg the observations in Croker v Commonwealth of Australia [2007] FCA 1593 at [23] in the Cufflinks proceedings (quoted at [175] above).
While Mr Croker points in his submissions to certain proceedings where his claims were upheld, that submission simply fails to grapple with the evidence of the overwhelming number of proceedings that were vexatious and shows a complete lack of insight into his conduct of litigation and its impact on other parties and the Court’s resources.
5.2.2Has Mr Croker “frequently” instituted or conducted vexatious proceedings?
Finally, in the circumstances, I have no doubt that Mr Croker has “frequently” instituted and conducted vexatious proceedings. Notwithstanding 33 proceedings which are not vexatious or relied upon as such, the fact remains that over the last 17 years, Mr Croker has commenced or conducted approximately 103 “proceedings” (in the sense defined in the Act) which were vexatious. In this regard, it will be recalled that proceedings for these purposes includes, for example, applications for leave to appeal or for an extension of time within which to appeal, such as in the second set of social security proceedings regarding the Disability Support Pension and Education Supplement (see at [115]-[119] above) and in relation to the subpoenas sought to be issued to the NSW Police and ATO in the Tenancy proceedings (see at [46] and [48] above). They also include the request by Mr Croker in these proceedings that the Registrar of the Federal Court obtain a copy of a Local Court file relating to criminal charges against a former practitioner who was the solicitor on the record in a number of the cases involving Mr Croker in evidence before me: Soden v Croker [2015] FCA 321.
5.3 Should the discretion be exercised so as to make a vexatious proceedings order against Mr Croker and in what terms?
5.3.1Factors relevant to the exercise of discretion
It follows from my findings above that I am satisfied that the criteria in s 37AO(1)(a) of the FCA Act have been met and that my discretion to make a vexatious proceedings order is enlivened.
The factors relevant to the exercise of discretion are informed by the protective purpose which vexatious proceedings orders serve: Gargan (No 2) at [12] (Perram J). The likely future conduct of the litigant is therefore a crucial consideration.
The procedural history of the litigant can be an important guide to the litigant’s likely future conduct: see by analogy Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574-575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). As the NSW Court of Appeal held in Teoh (No. 8):
69. It is clear from the procedural history that the applicant will not or cannot accept that her claims against the Council have been determined by the Land and Environment Court and this Court, and that further attempts to relitigate those claims will be both futile and an abuse of the Court's process. The procedural history also suggests very strongly that, unless a vexatious proceedings order is made, the applicant will persist in seeking to re-open orders made by this Court. As has been made clear in the judgments already given in the earlier proceedings, the consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court's limited time and resources. They are also likely to impose an unwarranted burden on the Council should it be forced to respond to further claims made by the applicant concerning the same subject matter.
70. If there were any doubt about the applicant's unwillingness or inability to perceive that litigation must be brought to an end once claims have been dealt with, they have been dispelled by the written submissions she has filed in opposition to the making of the proposed vexatious proceedings order. The submissions demonstrate a fixed determination to reargue issues that have long since been definitively resolved.
As the passage at [70] above illustrates, whether a litigant shows insight into her or his previous litigious history is also relevant in assessing the risk to the public and to the court. As Perram J observed in Gargan (No 2) at [12] in a passage cited with approval in Gargan at [8] (Davies J) and Chan at [40] (Adamson J):
Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
In addition, Leeming JA in Potier at [120] held that it is also relevant in the exercise of discretion for the Court to have regard to the proportion of proceedings which are vexatious. Given that an order may bear upon all proceedings instituted or conducted by a person, it follows, as Leeming JA explained, that “it will be essential for the court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious” (emphasis in the original).
5.3.2Should the discretion be exercised here to make the vexatious proceedings orders sought?
The procedural history strongly suggests that Mr Croker will continue to persist in vexatious litigation which is oppressive for respondents. His past litigation history demonstrates a relentless series of vexatious proceedings over a lengthy period of the nature which I have identified. Moreover, Mr Croker continued to demonstrate a complete lack of insight into the vexatious nature of his conduct in the manner in which he sought to defend these proceedings. First, as I have explained, he sought to agitate so-called constitutional issues in these proceedings which he identified in the s 78B notice notwithstanding a finding by the Full Court that a s 78B notice in other proceedings in identical terms save for the identification of different legislation was incomprehensible. Secondly, Mr Croker’s written submissions are largely unintelligible and rely upon irrelevant matters, including the existence of criminal proceedings against a legal representative of the Commonwealth. Thirdly, as to the latter point, on 11 February 2015, I refused an application by Mr Croker for access to a Local Court file relating to the pending criminal charges on the grounds that the file included material of a personal nature and that the material contained in the file could have no bearing upon the matters the subject of these proceedings. Mr Croker then applied to set aside that interlocutory decision on grounds which essentially repeated his submission on 11 February 2015 and had been rejected. As such, I refused the application holding that “the interlocutory application is an attempt merely to re-litigate an issue already determined by the Court”: Soden v Croker [2015] FCA 321 at [6]. I also held that in any event, I remained of the view that the material sought by Mr Croker “can have no rational bearing on the question before the Court on the substantive application” (at [7]). As such, the application was an abuse of process and provided further evidence of Mr Croker’s lack of insight into his vexatious conduct and propensity to relitigate adverse decisions.
In exercising my discretion I am mindful of the fact that there were 33 proceedings which were not relied upon as vexatious including some where Mr Croker was successful. However, not only were a substantial majority of proceedings vexatious (i.e. 103 proceedings), but several of the matters which are not relied upon as vexatious nonetheless spawned vexatious proceedings by way of appeals or other applications. An example of the latter is the tenancy proceedings where the initial proceedings in the Residential Tenancies Tribunal were not said to be vexatious: see further at [43] above. Furthermore, the possibility that Mr Croker may wish to pursue a case of merit in this Court is accommodated by the capacity for a grant of leave. As such, a vexatious proceedings order is not an absolute bar. In so saying, however, I do not underestimate the significance of the restrictions which a vexatious proceedings order imposes upon a litigant, particularly where the orders sought are unlimited by subject-matter or respondent as is proposed in this case.
As to the last of these matters, careful consideration should be given to the scope of the orders which might be made. For example, in Viavattene at [79] Leeming J observed that “it would seem desirable in most if not all cases to consider whether provision should be made carving out certain categories of proceedings which may be instituted without leave.” However, I accept the Registrar’s submission that this is not a case where the orders might be limited by such means. The difficulty is that Mr Croker has engaged in a sprawling history of litigation, often concurrently, with respect to diverse subject-matter and against a range of parties including credit providers, his dentist, mobile phone companies, various Commonwealth departments and the High Court. As such, it is not possible to predict what event might lead to the next proceedings or against whom they might be instituted.
On the evidence before me, therefore, I have no doubt that it is appropriate and necessary in order to protect the integrity of the Court’s processes and the public that orders are made under s 37AO(2)(b) of the FCA Act restraining Mr Croker from instituting or prosecuting any proceedings without leave of the Court in the terms sought by the Registrar in order 1 of the amended originating application. However, while an order was also sought by the Registrar under s 37AO(2)(a) of the FCA Act staying or dismissing all proceedings in the Federal Court, no list of any current proceedings pending before the Federal Court at the time of the hearing was provided despite being foreshadowed in the Registrar’s written submissions. As such, no current proceedings were identified which might justify the further order sought. Nonetheless, given the time which has elapsed since the hearing, I consider that I should allow the Registrar the opportunity to advise the Court on whether he presses for a further order in these terms. If so, I propose to bring the matter back for directions.
6. CONCLUSION
For the reasons set out above, it is appropriate and necessary for orders to be made precluding Mr Croker from instituting proceedings in the Federal Court of Australia without leave of the Court. The question of costs is reserved, as foreshadowed at the hearing.
I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 27 January 2016
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