Clayton Robert Croker v Hutchinson 3G Australia Pty Limited & Anor [2005] NSWSC 733 | Case summary

JUDGMENT 1 His Honour: The plaintiff has brought two further proceedings in this court. Both were commenced by summons. In each of the proceedings, his originating process presents his address as follows:- Ground Floor Suit 1 [sic] 1 Oxford Street, Darlinghurst, SYDNEY New South Wales, 2000. 2 There is evidence that the premises known as "1 Oxford Street, Darlinghurst" have erected thereupon a 20 storey office building and that the ground floor thereof comprises a number of businesses (including the Darlinghurst Post Office). 3 The plaintiff does not live at or occupy any part of the premises. 4 The plaintiff has brought numerous proceedings, both in this court and elsewhere. Despite his lack of success, he is yet to be declared a vexatious litigant. It appears that in those other proceedings on many occasions he has purported to use the Darlinghurst Post Office as his address (including Croker v Sydney Institute of TAFE [2003] FCA 942). If he has any arrangement with it for the handling of his documents, it is not the subject of evidence before this court. The inference is open that such address is deliberately used for the purpose of frustrating the execution of any orders made against him. 5 The plaintiff brought two proceedings in the Consumer Trader & Tenancy Tribunal (the Tribunal). In the first of those proceedings the Tribunal gave the plaintiff the benefit of an order to pay him the sum of $261.95. Orders were also made against the plaintiff himself (to return two mobile phone handsets and to pay the costs of the first defendant). An application for rehearing was not granted. In the second of those proceedings, his application was dismissed. 6 The two further proceedings brought in this court seek to challenge the decisions made by the Tribunal. 7 Before proceeding further, I should observe that it must be kept in mind that there is a limited avenue of challenge from decisions made by the Tribunal. The avenue of challenge is restricted to that which is provided by ss65 and 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). For the plaintiff's challenges to have any prospects of success (and they involve what appears to be very modest disputes), they must fall within this narrow ambit. The material before the court suggests that the decisions of the Tribunal turned on questions of fact. Submissions made by the plaintiff in this court suggest that he was significantly concerned with a failure by the Tribunal to enforce orders that it had made. I now move on to what is presently before the court. 8 The first defendant sought an order for security for costs (in the sum of $10,000) in each of the proceedings. 9 The applications were heard by Assistant Registrar Howe. On 22 April 2005, he handed down his decision, together with written reasons. The Registrar ordered that security in the sum sought be given by the plaintiff. 10 On 11 May 2005, the plaintiff filed notices of motion. In substance, a review of the decision of the Registrar is sought and as a consequence thereof, inter alia, the setting aside of the orders made by him. 11 The applications were heard by the court on 22 July 2005. The plaintiff appeared in person. The first defendant was represented by Ms C Mullins, solicitor. 12 The rules require that an originating process must have subscribed to it the name and address of the plaintiff. I now pass on to the power of the court to make an order for security for costs. 13 The court has an inherent power to make an order for security for costs. In addition, it has a discretionary power conferred by Rule 2 of Part 53 of the Supreme Court Rules 1970 (the Rules). This was the power relied on by the Registrar. 14 The inherent jurisdiction of the court gives it an unfettered discretionary power to order security in those cases where justice requires that it does so. Rule 2(1) enables the making of an order, inter alia, in those cases where the address of a plaintiff is not stated or is mis-stated in his originating process. Rule 2(2) provides as follows:- (2) The Court shall not order a plaintiff to give security by reason only of subrule (1) (c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive. 15 This provision imposes a restriction on the power to make an order founded on sub-rule (1)(c). 16 The court has undertaken a review of the decision of the Registrar. In so doing, it had regard to the material placed before the Registrar, his decision and the submissions made on behalf of the parties. What it did, was to perform the process of having a second look at the decision of the Registrar. 17 In applications of this nature, the plaintiff has the onus of demonstrating a basis for the disturbing of the decision of the Registrar. After the conducting of the review, I came to the view that such onus had not been discharged. Indeed, it seems to me that there is an additional basis which justifies a confirming of that decision. 18 The address provided by the plaintiff is not an address for service as required by the Rules (it is required to be the address of a place in the State at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceedings may be posted for that person). 19 There is an abundance of material to satisfy the court that the address that was given was provided knowing that it did not comply with the Rules and/or with intention to deceive. 20 The plaintiff has repeatedly and unsuccessfully attempted to proffer an address of this nature in the voluminous past litigation in which he has been involved (apparently about 25 other cases). His attempts have been the subject of various judgments. He offers no evidence as to lack of intention. He could be in no doubt that what he was presenting as an address for service did not comply with the Rules. 21 In his reasons for decision, the Registrar observed as follows [para 23]:- Finally, Mr Croker conceded that his address could be misstated. He made no submission as to how he might correct the misstatement and so comply with Part 9, rule 6 of the SCR which sets out the requirements for the provision of an address for service. 22 During the review, the plaintiff made no attempt to address either of these matters. He did no more than submit that he did not have to live at the address provided by him. Largely, his submissions were directed to the well-known discretionary considerations to which the Registrar had regard. 23 The requirements of sub-rule (1) have clearly been satisfied. What is required by sub-rule (2) has not been made out. Accordingly, the discretionary power could be exercised in the circumstances of this case. 24 There seems to be no issue as to the relevant discretionary considerations. The plaintiff has not taken issue with the quantum of the order. His complaint is directed only to the making of the order itself. 25 In my view, the orders that were made saw a proper exercise of the discretion of the court. 26 Although he says that the orders stultify a continuation of the proceedings, the plaintiff gives no evidence as to his means. He may be a pensioner and he has had filing fees waived. There is a history of unsuccessful litigation and of unsatisfied costs orders (there appears to be about 35 judgments). The material that he has put forward in these proceedings suggests that this is just another incidence of him litigating hopeless proceedings with no intention to satisfy any costs orders that may be made against him. It seems to me that there are powerful discretionary considerations which favour the orders made. 27 In the circumstances of this case, I consider that the inherent jurisdiction of the court could also be exercised to grant the relief sought by the first defendant. 28 The applications fail. The notices of motion are dismissed. The plaintiff is to pay the costs of the notices of motion. 29 It is a matter of great concern that this court should be waiving filing fees that enable a litigant in person to launch an avalanche of hopeless litigation with defective process that leaves a trail of unsatisfied costs orders. I refer the matters to the Prothonotary for consideration.

Clayton Robert Croker v Hutchinson 3G Australia Pty Limited & Anor

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