Crocker, in the matter of Crocker v Minister for Centrelink

Background 8 In Crocker v Infa-Secure Pty Ltd [2018] FCA 84, in which the Court dealt with an application seeking a vexatious proceedings order against the applicant (who was the respondent to that application), the Court ordered that: 1. 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. 2. 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 (sic) in respect of the substantive application in that proceeding or to any appeal by her from that judgement (sic). … 9 The exception in the vexatious proceeding order in respect of proceeding QUD 9 of 2015 concerns a long-running dispute between the applicant and Infa-Secure Pty Ltd involving a child restraint product: see Infa-Secure Pty Limited v Crocker [2015] FCA 830; Infa-Secure Pty Limited v Crocker (No 2) (2016) 338 ALR 586; [2016] FCA 202; and Infa-Secure Pty Ltd v Crocker (No 3) [2018] FCA 605. 10 On 11 December 2023, the applicant filed her application for leave to appeal and a supporting affidavit in respect of the proposed proceeding. She has also filed written submissions. The written submissions do not shed any light upon the grounds stated in her Originating Application. It may be noted that the applicant's written submissions of 27 March 2024 focus substantially upon the merits of QUD 9 of 2015 even though that proceeding is largely irrelevant to the present application. The proposed proceeding does not fall within the exception in the vexatious proceeding order. 11 The applicant requires leave under s 37AR of the Federal Court Act to institute the proposed proceeding. The Court is required to determine her application in accordance with ss 37AS and 37AT.

Legislative provisions 12 Under s 37AR of the Federal Court Act, a person may apply for leave to institute a proceeding that is subject to a vexatious proceeding order: 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. 13 An application for leave under s 37AR(2) requires compliance with the requirements of s 37AR(3), which are expressed in mandatory terms. In Gargan, in the matter of Gargan [2018] FCA 871, Mortimer J (as her Honour was then) observed 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. 14 It may also be noted that r 6.03 of the Federal Court Rules 2011 (Cth) (the Rules) provides that an application under s 37AR(2) of the Federal Court Act must be made in accordance with Form 2 and without notice to any other person. 15 While the Court may dispense with compliance with any of the Rules (r 1.34), the Court is required to determine the application in accordance with ss 37AS and 37AT of the Federal Court Act, which provide: 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). 37AT Granting application for leave (1) Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must: (a) order that the applicant serve: (i) the person against whom the applicant proposes to institute the proceeding; and (ii) any other person specified in the order; with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and (b) give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate. (4) The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding. 16 The term "vexatious proceeding" is defined in s 37AM(1) 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 17 I will consider whether the application complies with the statutory requirements and whether the proposed proceeding is a vexatious proceeding.

Whether the application complies with requirements 18 I will consider whether the applicant's affidavit filed in support of her application for leave substantially complies with the requirements of s 37AR(3), namely whether the affidavit: (1) lists all the occasions she has applied for leave under s 37AR; and (2) lists all the other proceedings she has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of s 37AR; and (3) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to her. 19 The affidavit does not list any occasion on which the applicant has applied for leave under s 37AR. I note that her application in Crocker, in the matter of Crocker [2019] FCA 432 is one such occasion. 20 The affidavit does not list all the other proceedings the applicant has instituted in the courts or tribunals. The affidavit discloses, perhaps inadvertently, only one proceeding the applicant has instituted in a tribunal, namely, the decision of the Tribunal annexed to her affidavit. A search of the Court's electronic files discloses a number of proceedings instituted by the applicant in this Court (QUD 647 of 2014, QUD 9 of 2015, QUD 119 of 2015, QUD 865 of 2015, QUD 345 of 2016, QUD 643 of 2016, QUD 668 of 2017, QUD 372 of 2018 and QUD 118 of 2019). 21 The applicant's affidavit does not disclose the reasons why she delayed between when the Tribunal's decision was made on 11 May 2023 and 11 December 2023 when she filed the present application. The adequacy of the applicant's explanation for the delay would be relevant to whether time should be extended under s 44(2A) of the AAT Act: see Salomonn v Migration Agents Registration Authority (2014) 141 ALD 459; [2014] FCA 380 (Salomonn) at [5]; Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (Katoa) at [40]; [2022] HCA 28. Accordingly, the applicant's affidavit fails to disclose all relevant facts about the application that are known to her. 22 In these circumstances, the affidavit does not substantially comply with s 37AR(3). That enlivens the Court's discretion under s 37AS(1) to make an order dismissing the application. 23 Substantial compliance with s 37AR(3) has been recognised as an important feature of the statutory framework for dealing with vexatious litigants: see: Gargan, in the matter of Gargan [2018] FCA 871 at [17]; Croker, in the matter of Croker [2019] FCA 359 at [12]. In circumstances where the applicant's affidavit fails to disclose significant material that would be highly relevant to the discretion to grant leave to institute a proceeding, I would dismiss the application under s 37AS(1) as a matter of discretion. 24 However, I will also consider whether the proposed proceeding must be dismissed pursuant to s 37AS(2) by reason of being a vexatious proceeding.

Whether proposed proceeding is a vexatious proceeding 25 A "vexatious proceeding" under s 37AM(1) of the Federal Court Act includes a proceeding that is an, "abuse of the process of a court", and a proceeding instituted or pursued in a court, "without reasonable ground". 26 As to the meaning of the phrase, "abuse of the process of a court", it is sufficient to note that commencing a proceeding that has no reasonable prospect of success is an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393. 27 As to the meaning of the phrase, "without reasonable ground", I agree with the observations of Charlesworth J in Garrett, in the matter of Company One [2016] FCA 703 at [9]-[10]: [9] 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 257at 272-273 and Geneff v Peterson (1986) 19 IR 40 at 87-88. [10] 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. 28 The matters that would be relevant to allowing an extension of time under s 44(2A) of the AAT Act include the extent of the delay, the explanation for the delay, the merits of the proposed appeal, and the extent of any prejudice to the respondent to the proposed appeal on the assumption that leave is granted: Salomonn at [5]; Tu'uta Katoa at [40]. 29 As has been observed, the applicant has not provided any explanation for her delay in bringing the present application. 30 It is also relevant to consider the merits of the grounds of the proposed proceeding. The first ground asserts that, "the respondent did not administer social security law in the manner in which it was supposed to". The proposed respondent is not the Tribunal: it is the "Minister for Centrelink". The ground does not assert any error of law on the part of the Tribunal. 31 The second ground asserts that, "the decision to reject my dsp was an error out of my control and therefore, should be backpaid to the date of application pursuant to the social security act". Even if the ground can be understood as alleging an error of law on the part of the Tribunal, it does not particularise the error. In the absence of identification of the error alleged, the ground cannot succeed. 32 The third ground asserts that, "[t]he respondent failed to understand or read my application correctly as found by Member Cavanagh of the AAT Brisbane". That seems to be an error on the part of the "Minister for Centrelink", rather than the Tribunal. 33 The fourth ground does not allege error on the part of the Tribunal. 34 The proposed proceeding is a vexatious proceeding, being an abuse of process of the court and a proceeding that is without reasonable grounds. The application must be dismissed under s 37AS(2) of the Federal Court Act. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.