CROKER v. CHALLONER [2000] NSWCA 342

COUNSEL : Claimant in person R.S. Sheldon (Opponent) SOLICITORS : Claimant in person Abbott Tout (Opponent) CATCHWORDS : PRACTICE - Court of Appeal - Review of decision of single judge of appeal - Nature of hearing - Decision must be clearly wrong - No question of principle ND DECISION : Motion dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40798/99 DC 9108/98 MASON P POWELL JA FITZGERALD JA

2 POWELL JA: By Notice of Motion filed by him on 3 August 2000 the Claimant, Mr. Croker, seeks to have this Court review a Judgment delivered, and orders made, in these proceedings by Giles JA on 20 July 2000. 3 On that day, there had been listed for hearing before his Honour a Notice of Motion filed by Mr. Croker on 18 May 2000, in which Notice of Motion Mr. Croker sought to have the Court review a direction given by Mr. Registrar Irwin on 11 May 2000 to the effect that Mr. Croker provide an address for service which complied with the provisions of SCR Pt 9 r 6, and a Notice of Motion filed on 14 June 2000 on behalf of the Opponent, Dr. Challoner, seeking to have the Notice of Appeal which had been filed by Mr. Croker on 10 December 1999 struck out on a number of grounds, including that - as it clearly had been - it had been filed out of time. As Giles JA noted in his Judgment, by consent, on the hearing of the Notices of Motion he also entertained an oral application, made by Mr. Croker, for an order extending the time for lodging a Notice of Appeal. 4 The appeal which, by his Notice of Appeal, Mr. Croker had sought to institute, and which he seeks to maintain, in these proceedings relates to orders made by Sinclair A-DCJ on 6 August 1999 in proceedings DC 9108/98 which he had commenced in the District Court with the filing of an Ordinary Statement of Claim on 15 December 1998. 5 As best as one can judge it, in those proceedings Mr. Croker sought to recover from Dr. Challoner, a dentist, what appear to be damages which he quantified in the sum of $100,000.00. 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. 6 In addition to filing, on 29 January 1999, on Dr. Challoner's behalf a Notice of Grounds of Defence, in which Notice of Grounds of Defence an attempt was made to come to grips with the various uncertainties caused by the form of the Statement of Claim, Dr. Challoner's solicitors, on that day, wrote to Mr. Croker at the address given by him in the Statement of Claim - which address, it was later to appear, was, not the address of Mr. Croker's residence or place of business, but no more than the address of the Darlinghurst Post Office - a letter requesting particulars of his Statement of Claim in order that the cause of action might be identified, that the particulars of negligence - if that were Mr. Croker's cause of action - were identified and that particulars of any personal injuries claimed to have been sustained by Mr. Croker and any items of special damage sought to be recovered by Mr. Croker might be identified. 7 No such particulars having been supplied by that time, Dr. Challoner's solicitors, on 10 May 1999, wrote again to Mr. Croker seeking the provision of those particulars and foreshadowing that, in the event of their not being provided, an application would be made to the Court for an order that they be so provided. 8 Mr. Croker's proceedings in the District Court were listed for a directions hearing on 19 May 1999, on which day, so it would appear, he was ordered to provide answers to the request for particulars within 14 days. 9 On 1 June 1999, Mr. Croker filed in the District Court, and served on Dr. Challoner's solicitors, a document entitled "Statement of Particulars". Quite apart from the fact that the Statement of Particulars enlarged the period within which, so it had been alleged in the Statement of Claim, Mr. Croker had sought, and received from, Dr. Challoner dental treatment - a fact which, at the least, raised the possibility that any cause of action in negligence or breach of duty for damages for personal injury which Mr. Croker may have claimed to have was statute barred (Limitation Act 1969 s.18A) - the Statement of Particulars is no more informative than was the Statement of Claim. 10 Accordingly, on 3 June 1999, Dr. Challoner's solicitors wrote to Mr. Croker pointing out the inadequacies in the "Statement of Particulars" and informing him that, unless the information which had earlier been sought was provided, an application would be made to have the Statement of Claim struck out. 11 No further particulars having been supplied, Dr. Challoner's solicitors caused to be filed on his behalf a Notice of Motion seeking an order that the proceedings be struck out for want of prosecution. 12 That application came before Sinclair A-DCJ on 19 July and 6 August 1999, on which latter day his Honour, on the grounds, first that the Statement of Claim did not disclose a cause of action, and, second, that, despite having had ample opportunity to do so, Mr. Croker had not provided particulars which might have enabled content to be given to the pleading, ordered that the proceedings be struck out for want of prosecution - the phrase "want of prosecution" does not mean, as some of Mr. Croker's comments suggest that he might believe it to mean, a failure to have a complaint of professional misconduct dealt with by the appropriate disciplinary body, but means merely a failure to comply with an order or direction as to the conduct of the proceedings or a failure to prosecute the proceedings with due dispatch (DCR Pt 18 r 3(1)). 13 Thereafter, on or about 3 September 1999, Mr. Croker filed in the Common Law Division of the Court in file No. 12172 of 1999 a Summons which, so far as is relevant, was as follows: "The Plaintiff claims: 1) The sum of $120,000.00; 2) Damages; 3) The setting aside of the inferior Court decision (whole), made on the 6th August on the grounds that: 1) The aggrieved party of the inferior Court can apply to the Supreme Court of New South Wales for Administrative reviews of the decision. Supreme Court Act s 75A, District Court Act s 127(1). 2) The acts of the Dentist Dr. George Challanor were of a level below the average skill of a dentist at the time of treating the Plaintiff. The breach of the Dentist Act has produced grounds for a claim of professional negligence."

14 The Affidavit which was sworn by Mr. Croker, and filed by him, in support of that Summons revealed a total failure on his behalf to understand the nature of the application which had been made to, and disposed of by, Sinclair A-DCJ, as well as a total failure on his behalf to understand the steps which were open to him to seek to remedy any failure on behalf of Sinclair A-DCJ to deal correctly with that application. 15 Mr. Croker's Summons came before Hidden J on 5 October 1999, on which day his Honour ordered that the Summons be struck out but made no order for costs. 16 Thereafter, on or about 15 October 1999, Mr. Croker filed in these proceedings a Notice of Appeal, in which Notice of Appeal, so it seems, he sought to have the order made by Hidden J on 5 October 1999 set aside. 17 On 20 October 1999, Dr. Challoner's solicitors wrote to Mr. Croker drawing his attention to the form of the Notice of Appeal and pointing out that, if what he sought to achieve was to have the order made by Sinclair A-DCJ set aside, he would need to amend the Notice of Appeal. 18 Thereafter, on 10 December 1999, Mr. Croker filed a further Notice of Appeal in which he sought an order that the order made by Sinclair A-DCJ - described, erroneously, as having been made in proceedings heard and decided on 5 October 1989 - set aside and that "the Appellant" - presumably meaning Dr. Challoner - "pay $150,000.00 in damages" and that "the Respondent" pay "the cost of the several appeals" upon the grounds: "1. The appeal lies in that Judge Sinclair failed to recognise evidence of and the nature of the facts of law (sic) in relation (sic) ship to the offence committed to the appellant. 2. The Appellant was in receipt of treatment by the respondent that was of a standard below that expected of an ordinary man. 3. The Judge Sinclair failed to acknowledge the want for prosecution (sic) of the Appellants (sic)."

19 Although it is not entirely clear that this was so, it would appear that, thereafter, the proceedings were listed before Mr. Registrar Irwin on a number of occasions, including 11 May 2000, on which latter day the Registrar directed Mr. Croker to provide a proper address for service within 7 days. 20 It would seem that a Notice of Motion seeking to review the direction given by Mr. Registrar Irwin was filed on 18 May 2000, that Notice of Motion being made returnable before the Registrar on 29 May 2000. 21 On the latter day, the Registrar made a number of directions and orders including: "1. That any application to strike out the appeal be filed and served by 14 June 2000; 2. That Mr. Croker's Notice of Motion be made returnable on 20 July 2000; 3. That Mr. Croker's Notice of Appeal stand adjourned to 24 July 2000 be specially fixed for review before two Judges of the Court of Appeal."

22 Thereafter, on 14 June 2000, there was filed on behalf of Dr. Challoner the Notice of Motion to which I have earlier referred. 23 As I have earlier indicated, the Notice of Motion which had been filed by Mr. Croker and that which had been filed on behalf of Dr. Challoner came on for hearing before Giles JA on 20 July 2000. At the same time, there were listed before his Honour two Notices of Motion which had been filed in proceedings in the Court which had been brought by Mr. Croker against a Mr. Ewen. In the event, however, it is unnecessary to refer to those proceedings or to the outcome of the applications which were dealt with by Giles JA on that day. 24 In the proceedings between Mr. Croker and Dr. Challoner, Giles JA dealt first with the application which had been filed on behalf of Dr. Challoner. As, unless this Court is minded to set aside the orders made by his Honour in relation to that application, there is no need for this Court to deal with the orders made by his Honour on the application which had been made by Mr. Croker I content myself with dealing with the former application. 25 The grounds upon which the application which had been filed on behalf of Dr. Challoner were advanced were, shortly, as follows:

3. that a consideration of the material which was before Sinclair A-DCJ and his Honour's reasons showed that the appeal was manifestly unarguable and that, accordingly, the appeal constituted an abuse of process.

Although the transcript of the hearing before Giles JA would indicate that his Honour raised for consideration the question whether, because the order made by Sinclair DCJ was, in any event, interlocutory, the appeal was incompetent, no submission to that effect appears to have been advanced on behalf of Dr. Challoner; nor, as best as I can judge it, was it submitted that, even if Sinclair A-DCJ's Judgment were a final one the appeal was incompetent, in any event, as it did not concern a matter involving a sum in excess of $100,000.00. 26 In the Judgment which he delivered on 20 July 2000, his Honour said (inter alia): "16. It is apparent from what I have said that the appeal was out of time. By consent I received an oral application by Mr. Croker for an extension of time. In my view it is sufficient to concentrate on that, as if no extension of time to appeal be granted then the appeal must be struck out. 17. I will proceed upon the basis that the misguided proceedings which came before Hidden J, which were commenced on or about 3 September 19999, gave some indication to Dr. Challoner that Mr. Croker wished to contest the decision of Sinclair DCJ. 18. Nonetheless, on an application for an extension of time it is appropriate to consider the prospects of success of the appeal. Sinclair DCJ's decision was unarguably correct, and the grounds of appeal make no sense as challenges to the 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. I so order, and order that Mr. Croker pay Dr. Challoner's costs."

27 The order which his Honour then made was in addition to the order which, earlier in his Judgment, he had made dismissing with costs the Notice of Motion which had been filed by Mr. Croker on or about 18 May 2000. 28 In the Notice of Motion which was filed by Mr. Croker on 3 August 2000 and with which the Court is now concerned to deal, Mr. Croker sought the following orders: "1. That the Judgment of the learned MR JA Giles heard on the 20th day of July in the year 2000 and decided on the 20th day of July in the year 2000 be set aside in part. 2. The Appellant is given leave to appeal the Judgment of the learned Mr JA Giles. 3. That the full court of the Court of Appeals (sic) hears the Notice of Motion. 4. The Respondent pays the costs of the Notice of Motion."

29 As one might expect, the Written Submissions which were filed by Mr. Croker, a substantial part of which submissions was directed to the order made by Giles JA dismissing Mr. Croker's 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. 30 The approach to be adopted by this Court on an application such as that with which it is now concerned to deal was dealt with by the Court in Wentworth v. Wentworth (1994) 35 NSWLR 726. In that case Mahoney JA (as he then was), with whom Handley JA agreed, expressed the view that, in order to succeed on an application such as this, an applicant, such as Mr. Croker, must demonstrate that the Judge, whose order is sought to be reviewed, misdirected himself in point of principle, or that the order made by him was clearly wrong, while I expressed the view that, in order to succeed, the applicant must demonstrate that the discretion vested in the Judge whose order is sought to be reviewed clearly miscarried. 31 In my view, 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 and, for that reason, I would propose that the Motion be dismissed with costs.

Although it did not form a ground for the order made by Giles JA, I would add that, in any event, Mr. Croker's purported appeal to this Court was incompetent as the orders made by Sinclair A-DCJ - not being orders which finally resolved the rights inter se of Mr. Croker and Dr. Challoner - were clearly interlocutory, so that an appeal to this Court lay only by leave, which leave was never sought or granted.

32 FITZGERALD JA: I agree with Powell JA. ********

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