Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd

INTRODUCTION

1. The applicant, Ms Debra Ann Crocker, applies for leave to institute proceedings pursuant to s 37AR(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Ms Crocker is subject to a vexatious proceedings order made on 16 February 2018 pursuant to s 37AO of the FCA Act: Crocker v Infa-Secure Pty Ltd [2018] FCA 84.
2. In her application for leave to institute proceedings filed on 9 July 2024, Ms Crocker advances the following reasons as to why she ought to be granted leave to appeal against the judgment in proceeding QUD 9 of 2015:
3. I was denied my fair hearing rights in never having been served
4. the application of QUD9/2015 is a fraud upon the court and a contempt in the face or hearing of the court.
5. The applicant is not known to me and did not have any history with me… it was another business of same name that I had an association with.
6. it is in the interest of justice that I am heard on this matter and the matter remedied.
7. every order procured by the applicant of QUD9/2015 was procured via fraud.
8. the evidence filed by the applicant of QUD9/2015 is all false and deliberately misleading as it belongs to another entity of same name. Namely, a business using the unregistered name.
9. Pursuant to s 37AS(3) of the FCA Act, the Court may dismiss an application for leave to institute proceedings without an oral hearing, with or without the consent of the applicant. In this matter, Ms Crocker initially sought, and was granted, an opportunity to be heard orally. However, before the hearing date, Ms Crocker advised the Court that she was no longer seeking to be heard orally. In those circumstances, I consider it to be appropriate for the application to be determined without an oral hearing, based on the material filed in support of Ms Crocker's application.
10. Ms Crocker has filed several affidavits and written submissions in support of her application. By email correspondence to the Court, Ms Crocker repeatedly sought to widen the scope of her application. She was granted leave to file some additional material to the extent that it is relevant to her application for leave to institute proceedings. Some of the material which has been filed duplicates material previously filed and much of it is tangential and circuitous. The entire basis of Ms Crocker's application is therefore not entirely clear. However, as she is a litigant in person, I have made every attempt to distil her case.
11. For the reasons that follow, the application is dismissed.

BACKGROUND

1. It is fair to say that at the core of Ms Crocker's grievances is the long-running dispute between herself and Infa-Secure Pty Ltd, which concerned ownership of the intellectual property rights in a child restraint product: Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588 (Joinder Judgment); Infa-Secure Pty Limited v Crocker [2015] FCA 830 (Infa-Secure v Crocker); Infa-Secure Pty Limited v Crocker (No 2) (2016) 338 ALR 586; [2016] FCA 202 (Infa-Secure v Crocker (No 2)); Infa-Secure Pty Ltd v Crocker (No 3) [2018] FCA 605 (Infa-Secure v Crocker (No 3)).
2. It is necessary to detail some of the factual and procedural background relevant to this long-running controversy.
3. In early December 2014, Ms Crocker commenced proceedings against a number of respondents, including "Infa Secure Pty Ltd", alleging infringement of trademark and copyright (QUD 647 of 2014): Joinder Judgment at [2], [5]. After commencing the proceeding, Ms Crocker sent a series of emails to Infa-Secure's retailer customers which were the subject of proceeding QUD 9 of 2015: Infa-Secure (No 3) at [1], [11]. After Infa-Secure threatened to apply for an interlocutory injunction to restrain Ms Crocker from continuing to send such communications, in late December 2014, she discontinued the proceeding against Infa-Secure: Infa-Secure (No 3) at [11]; Crocker v Toys 'R' Us at [2].
4. Thereafter, Infa-Secure commenced a separate proceeding (QUD 9 of 2015) against Ms Crocker seeking, inter alia, an interlocutory injunction restraining Ms Crocker from continuing to send communications to Infa-Secure's customers: Infa-Secure v Crocker (No 3) at [11] - [12].
5. At the first return of proceeding QUD 9 of 2015 on 12 January 2015, Ms Crocker gave an undertaking not to communicate with any persons about the subject matter of proceeding QUD 647 of 2014 and proceeding QUD 9 of 2015: Infa-Secure v Crocker (No 3) at [12].
6. On 13 August 2015, Ms Crocker was found guilty of 27 counts of contempt of Court for breaching the undertaking she gave on 12 January 2015: Infa-Secure v Crocker. On 4 March 2016, she was found guilty on two of three additional counts of contempt and sentenced to 13 weeks imprisonment on the total of 29 findings of contempt: Infa-Secure v Crocker (No 2).
7. On 22 July 2016, a registrar made a sequestration order against the estate of Ms Crocker. She applied for review of the registrar's decision, which was dismissed on 2 November 2016: Infa-Secure Pty Ltd v Crocker [2016] FCA 1319 (Review Judgment). In that proceeding, Ms Crocker contended that there was no debt and that her estate was wrongly sequestrated: Review Judgment at [2]. In that regard, Logan J considered that the title of Ms Crocker's originating application in proceeding QUD 647 of 2014 bore a number of deficiencies including that it did not assign each of the respondents party numbers nor indicate which of the parties was a body corporate, save for "Infa Secure", to which was added "Pty Ltd": Review Judgment at [4]. A notice of acting - appointment of lawyer was subsequently filed on behalf of Infa-Secure which included the company's Australian Company Number and it was named as the first respondent: Review Judgment at [6] - [7].
8. When Ms Crocker discontinued the proceedings against "The first respondent Infa Secure Pty Ltd" in proceeding QUD 647 of 2014 without there being consent to that discontinuance, the first named respondent became entitled to its costs: Review Judgment at [8] - [9]. At [15] - [16] of the Review Judgment, Logan J stated: It does appear to me, in the exercise of bankruptcy jurisdiction, to be in the interests of justice to explore whether there was an entitlement on the part of Infa-Secure to institute the proceeding for sequestration. As it happens, that explanation does not involve any great journey. That is because on the evidence, which materially includes a number of searches of the records of the Australian Securities and Investments Commission, it is apparent that there is no legal entity by the name Infa Secure. More particularly, there is no corporate entity of that name. There is a corporate entity, Infa-Secure, with the Australian Company Number mentioned. Given the imprecision of description which Ms Crocker chose in entitling her originating application, it does not appear to me to be unreasonable for Infa-Secure to have regarded itself as the party intended to be named. That being so, Ms Crocker is, with respect, in many ways the author or her own misfortune. Infa-Secure gave notice of a lawyer acting for it and what followed thereafter in terms of the costs debt which arose occurred by operation of the rules and as a sequel to Ms Crocker's notice of discontinuance.
9. Proceeding QUD 647 of 2014, along with a proceeding commenced by Ms Crocker against the "Registrar of Trademarks IP Australia" (QUD 865 of 2015), were both dismissed following an election by Ms Crocker's trustees in bankruptcy not to prosecute the proceedings: Crocker v Toys 'R' Us (Australia) Pty Ltd [2017] FCA 619.
10. Ms Crocker also applied for the annulment of her bankruptcy. Infa-Secure applied for summary dismissal as well as, by a separate application, sought a vexatious proceedings order against Ms Crocker: Crocker v Infa-Secure at [2]. In February 2018, Logan J dismissed Ms Crocker's application for annulment of bankruptcy and made the vexatious proceedings order pursuant to s 37AO of the FCA Act. The vexatious proceedings order relevantly provided:
11. Subject to the exception specified in Order 2, the respondent be prohibited, pursuant to section 37AO of the Federal Court of Australia Act 1976 (Cth), from instituting proceedings in the Court.
12. The prohibition specified in Order 1 not extend to any interlocutory application by the respondent in proceeding QUD 9 of 2015 in the Court subsequent to the delivery of judgement in respect of the substantive application in that proceeding or to any appeal by her from that judgement.
13. On 3 May 2018, Reeves J determined that an injunction pursuant to s 232(4) of the Australian Consumer Law, being Sch 2 in the Competition and Consumer Act 2010 (Cth), should issue to restrain Ms Crocker from repeating conduct which constituted misleading or deceptive conduct as well as false or misleading representations about goods or services: Infa-Secure v Crocker (No 3) at [73]. His Honour directed Infa-Secure to provide draft orders giving effect to the reasons for judgment. On 17 May 2018, orders were made giving effect to the reasons as follows: THE COURT DECLARES THAT:
14. The threats made by the Respondent in an email sent by her to Ms Chrysiliou on 5 November 2014, and in an email sent by her to Mr Van Der Westhuizen, Ms Chrysiliou, Ms Lynne Milham and Mr Matthew Horsfall on 1 June 2017, to bring an action or proceeding in respect of an infringement of copyright with respect to packaged child safety restraint devices bearing any of the names "Securap", "Secur-Ap" or "Securall" (collectively "the Device") were unjustified. THE COURT ORDERS THAT:
15. The Respondent, whether by herself, servants or howsoever otherwise, is restrained from: (a) threatening to bring an action or proceeding in respect of an infringement of copyright related to any example of the Device; and (b) aiding, abetting, counselling, or procuring any such threat.
16. The Respondent, whether by herself, servants or howsoever otherwise, in trade or commerce, is restrained from: (a) making any of the representations set out in the schedule to this order ("the Prohibited Representations") or any other statements or claims similar to the Prohibited Representations; and (b) aiding, abetting, counselling, or procuring the making of the Prohibited Representations or any statements or claims similar to the Prohibited Representations.
17. The Respondent pay the Applicant's costs of the proceeding, to be taxed if not agreed. (Emphasis in original.)
18. As is discussed more fully below, it also appears that on 30 May 2018, Ms Crocker sought to appeal the orders made on 17 May 2018 in Proceeding QUD 9 of 2015 (QUD 372 of 2018). That appeal was dismissed by orders made on 3 September 2018.

LEGISLATIVE FRAMEWORK

1. Section 37AR of the FCA Act provides as follows: 37AR Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or (b) acting in concert with another person who is subject to an order mentioned in paragraph (a). (2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order. (3) The applicant must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under this section; and (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order. (Emphasis in original.)
2. Section 37AS of the FCA Act provides for the dismissal of an application for leave to institute proceedings: 37AS Dismissing application for leave (1) The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3). (2) The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding. (3) The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).
3. The term "vexatious proceeding" is defined in s 37AM(1) of the Act and includes: (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.

CONSIDERATION

1. I will first consider whether Ms Crocker's affidavits substantially comply with s 37AR(3) of the FCA Act, before considering whether the proceeding is a vexatious proceeding.

Do Ms Crocker's affidavits substantially comply with s 37AR(3)?

1. As set out above, Ms Crocker's affidavits must:
2. list all the occasions on which she has applied for leave under s 37AR of the FCA Act; and
3. list all other proceedings she has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of s 37AR of the FCA Act; and
4. disclose all relevant facts about the application, whether supporting or adverse to the application, that are known to her.
5. The requirements in s 37AR(3) can be met by the filing of multiple affidavits prior to the application for leave to institute proceedings being determined: Crocker, in the matter of Crocker [2019] FCA 432 (First Leave Judgment) at [7].
6. Notwithstanding that Ms Crocker deposes that the only proceedings she has ever instituted "in Australian court are related to QUD647/2014", she does not, in the text of her affidavits, list all the occasions on which she has applied for leave under s 37AR of the FCA Act. For example, Ms Crocker has previously applied for leave to institute proceedings alleging that fraud had been committed against the Court by Infa-Secure: First Leave Judgment at [13].
7. More recently, Ms Crocker has applied for leave to institute proceeding in relation to an extension of time to appeal a decision of the Administrative Appeals Tribunal: Crocker, in the matter of Crocker v Minister for Centrelink [2024] FCA 399 (Second Leave Judgment) at [4].
8. Ms Crocker also does not, in the text of her affidavits, list all other proceedings that she has instituted in any Australian court or tribunal. She makes vague references to proceedings commenced by her including that the only proceedings she has ever instituted "are related to QUD 647/2014", as stated above, and that she sought relief in the Court relating to her claim against the Registrar of Trade Marks. However, she does not provide identifying details as to the proceedings which she has commenced.
9. A search of the Court's electronic files reveals that Ms Crocker has instituted a number of proceedings which she has failed to materially identify (QUD 119 of 2015, QUD 865 of 2015, QUD 643 of 2016, QUD 668 of 2017, QUD 372 of 2018, QUD 118 of 2019 and NSD 1503 of 2023). Ms Crocker has only made reference to QUD 647 of 2014 and QUD 9 of 2015, the latter of which was instituted by Infa-Secure.
10. Noting that each requirement is s 37AR(3) is mandatory, the Court's discretion under s 37AS(1) to dismiss the proceedings on the basis of lack of substantial compliance with s 37AR(3) is enlivened: Croker, in the matter of Croker [2019] FCA 359; Second Leave Judgment at [22].
11. As stated by Mortimer J (as her Honour then was) in Gargan, in the matter of Gargan [2018] FCA 871 at [17]: The purpose of the requirement in s 37AR(3) is an important one. It is by this affidavit evidence that the Court is, at least in part, to assess whether the proposed proceeding for which leave is sought should be characterised as a vexatious proceeding. A failure by an applicant fully and frankly to disclose all previous proceedings, and to do so in a way which enables the Court to assess that history of litigation against the current application, adversely affects the Court's ability to carry out the task required under Div 3 of Pt VAAA of the Federal Court Act.
12. Section 37AR(3) is central to Part VAAA of the FCA Act and "requires the provision of accurate and materially complete information to allow the Court to discharge its duty to consider the application according to law without the benefit of further material or submissions": Croker at [12].
13. The importance of this provision is amply demonstrated in this case, in which Ms Crocker alleges that fraud occurred in relation to proceedings commenced in 2015. Since that date, Ms Crocker has commenced numerous other proceedings in this Court.
14. Ms Crocker's affidavits fail to make full and frank disclosure of the occasions on which she has applied for leave to institute proceedings, as well as all the other proceedings she has commenced in this Court. Such information would be very pertinent to the exercise of the discretion to grant leave to institute proceedings. As Ms Crocker has not substantially complied with s 37AR(3), I would dismiss the application for leave to institute proceedings pursuant to s 37AS(1) of the FCA Act.
15. Nonetheless, I will proceed to also consider whether the proceeding is a vexatious proceeding and must be dismissed pursuant to s 37AS(2) of the FCA Act.

1. In Re Garrett [2016] FCA 703 at [8] - [20], Charlesworth J helpfully summarised the principles relevant to the definition of a "vexatious proceeding". As to the phrase "without reasonable ground", Charlesworth J stated at [9] - [10]: The phrase "without reasonable ground", as used in paragraph (c) of the definition, is equivalent in meaning to the phrase "without reasonable cause". In Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 (Spotless) the Full Court considered the phrase "without reasonable cause" as it then appeared in s 347(1) of the Workplace Relations Act 1996 (Cth). The Full Court said (at [13]) that the question of whether a proceeding has been commenced without reasonable cause is to be answered as a matter of objective fact and requires an assessment of whether the proceeding is "bound to fail" or "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "bad beyond argument". In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, von Doussa J said (at FCR 327 [8]; IR 34): The test imposed by the expression 'vexatiously or without reasonable cause' is similar to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings: see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272-273 and Geneff v Peterson (1986) 19 IR 40 at 87-88. The test being an objective one, it is not to the point that the applicant subjectively believes there to be a reasonable ground to institute the proceeding.
2. As to the phrase "abuse of the process of a court", I refer to the observations of Greenwood J in Hii v Commissioner of Taxation [2020] FCA 1452 at [65]: In Tyne, Kiefel CJ, Keane and Bell JJ observed at [1], citing Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 per Lord Diplock; Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25] per French CJ, Bell, Gageler and Keane JJ, that: The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. [emphasis added] (Empasis in original.)
3. The commencement of a proceeding that has no reasonable prospect of success constitutes an abuse of process: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393.
4. From what can be discerned from the material filed, Ms Crocker's application concerns two proposed proceedings. First, an appeal or setting aside of proceeding QUD 9 of 2015 (Proposed Proceeding: QUD 9 of 2015) and, secondly, proceedings with respect to a decision of a delegate of the Registrar of Trade Marks (Proposed Proceeding: Registrar of Trade Marks). I will consider each in turn. Proposed Proceeding: QUD 9 of 2015
5. As to the proposed appeal of QUD 9 of 2015, it should be noted that Ms Crocker has in fact appealed the final orders made in QUD 9 of 2015 in proceeding QUD 372 of 2018, which was dismissed on 3 September 2018. She did not require leave to bring the appeal as it was within the exception to the vexatious proceedings order set out in [15] above. This is contrary to what Ms Crocker deposed in her supporting affidavit filed on 9 July 2024, namely that this is her first appeal of that matter.
6. Accordingly, Ms Crocker has already exhausted her right to appeal against the orders in QUD 9 of 2015 and has no further right of appeal in this Court. In those circumstances, Ms Crocker's proposed appeal would be an abuse of process as it would both cause unjustifiable oppression to a party, such as Infa-Secure, as well as bring the administration of justice into disrepute.
7. To the extent that Ms Crocker applies to set aside the orders made in QUD 9 of 2015 on the basis that that it was obtained by fraud (for example, pursuant to r 39.05(b) of the Federal Court Rules 2011 (Cth)), I note that Ms Crocker has applied for leave to institute proceedings in 2019 for what appears, in part, to be substantially the same reasons which are now advanced before me: First Leave Judgment at [18].
8. Rule 16.42 of the Rules provides: 16.42 Fraud, misrepresentation etc A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.
9. Ms Crocker has not annexed a draft statement of claim containing the required particulars.
10. In her affidavits, Ms Crocker deposes to two principal matters which can be said to be the particulars of her allegations of fraud. First, that she has not been served with the originating application in proceeding QUD 9 of 2015 and second, that her evidence was tampered with. As to the former allegation, Ms Crocker deposes:

• Pursuant to r 8.06 of the Rules, she was to be served with the originating application at least five days before the return date fixed in the originating application.
• The originating application was filed on 9 January 2015 and the first return date was 12 January 2015.
• When she was asked by Dowsett J as to whether she was served, she replied that she had been served with unsealed documents. She later realised that such documents were with respect to proceeding QUD 647 of 2014, not proceeding QUD 9 of 2015.
• She believes that the non-service of the originating application was intentional to ensure that she "did not know why they were filing a fall company before the court".

1. I consider such a proposed proceeding to be without reasonable cause and bound to fail. The Court may shorten a time fixed by the Rules pursuant to r 1.39 of the Rules. Further, noting that Ms Crocker appeared before the Court on the first return date of 12 January 2015, she would be deemed to have been served with the originating application: r 10.11 of the Rules.
2. Ms Crocker has otherwise made various allegations of fraud on the part of Infa-Secure's lawyers and contempt of court by Infa-Secure. It is not necessary nor appropriate to set out the allegations in detail. However, to the extent that the claim can be understood, it appears that Ms Crocker's asserts that her evidence was tampered with such that the name of the first named respondent was changed to an entity with an Australian Company Number that was not the correct entity. She submits that her evidence outlined a history with a different entity bearing a different Australia Company Number. The different entity with which she deposes to having had dealings appears to be Infa Products Pty Ltd, a corporate predecessor to Infa-Secure: Infa-Secure v Crocker (No 3) at [5]. The various interests of Infa Products were transferred and assigned to Infa-Secure by an agreement in 2011: Infa-Secure v Crocker (No 3) at [9].
3. Ms Crocker makes reference to proceeding NSD 410 of 2016, which is a reference to an application to set aside a deed of company agreement. On 28 July 2016, Burley J delivered judgment: Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848 and dismissed the plaintiff's amended originating process by orders made on 29 September 2016. Ms Crocker makes particular reference to [63] of Britax Childcare as follows: On 22 December 2015, the day before the Administrators were appointed, Infa sold its last remaining asset, being its IP, for $524,000 to HBG, a company owned in equal parts by Richard Horsfall's four sons, Steven, Anthony, Matthew and James. HBG was a corporation formed for the purpose of licensing Infa-Secure to use the IP in relation to products that it sold. This is referred to in the Points of Claim as the Fifth Transaction. (Emphasis in original.)
4. Ms Crocker submits that, "Infa secure Pty Ltd 149173660 was only ever leased the property, not sold it. It is the lease agreement that should have been provided to the court as that would be the alleged agreement already accepted by the Federal Court NSW division". In Britax Childcare, Burley J stated at [36]: On 7 February 2011 Infa entered into an agreement whereby it sold its stock and also its goodwill to Infa-Secure. This is identified in the plaintiff's Amended Points of Claim (Points of Claim) as the First Transaction out of five that it questions in this proceeding. (Emphasis in original.)
5. It is otherwise unclear why Ms Crocker makes reference to proceeding NSD 410 of 2016.
6. Save for mere assertions, Ms Crocker has not provided any evidence which would support her serious allegations of fraud and impropriety. She has annexed to her affidavits material which can be considered "intemperate, confused, piecemeal collations": First Leave Judgment at [25]. She has not provided any evidence which could support her allegation that a person or persons have tampered with her evidence. I am not satisfied that she has an arguable case for setting aside the orders on the basis of fraud. The same can be said for Ms Crocker's allegations of contempt of court, which are also unfounded. I accordingly consider that the proposed proceedings with respect to Proceeding QUD 9 of 2015 would be without reasonable ground and an abuse of process. Proposed Proceeding: Registrar of Trade Marks

CONCLUSION

1. For the reasons above, the proposed proceedings are vexatious proceedings. The application for leave to institute proceedings must be dismissed pursuant to s 37AS(2) of the FCA Act. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.