Croker v Commissioner of Taxation for the Commonwealth of Australia

REASONS FOR JUDGMENT 1 An application, accompanied by a statement of claim, was filed in this Court on 5 January 2009 by Mr Clayton Robert Croker. The gist of the case Mr Croker seeks to have heard and determined in this Court is an application arising from the issuing of bankruptcy notices against him in respect of which there has now been a considerable body of litigation in this Court. Arising from those events, Mr Croker wishes to allege that there has been, on the part of the Commissioner, a misfeasance in public office, which is pleaded in a number of ways in the statement of claim. Mr Croker seeks relief by way of damages and interest. 2 However, a similar application was made to the Court some time ago and determined by Cowdroy J on 6 April 2006: Croker v Commissioner of Taxation [2006] FCA 372. His Honour determined that the Court had no jurisdiction to hear a claim which, although wider in scope, nonetheless included the allegation that the Commissioner had committed the tort of misfeasance in a public office which had occasioned Mr Croker damage. Justice Cowdroy concluded the Court had no jurisdiction. An application for leave to appeal against that judgment was heard and determined by Edmonds J who refused leave. In the course of doing so, Edmonds J indicated in general terms that he agreed with the conclusion of Cowdroy J that the Court had no jurisdiction: Croker v Commissioner of Taxation [2006] FCA 720. At the very least, in my view, the decision of Cowdroy J raises, as submitted by the Commissioner in a motion to have me dismiss the application, an issue estoppel. It may have the additional consequence that, in any event, I am bound to follow the judgment of Cowdroy J. Having regard to the fact that there has been a determination by this Court that it has no jurisdiction to hear and determine a claim in tort for misfeasance in public office, in broadly the same set of circumstances relied upon by Mr Croker in this case, it would seem to me that there is no course open to me other than to dismiss the application on the basis that Mr Croker is estopped from arguing the Court does have jurisdiction. 3 If I am wrong in that regard, I am nonetheless bound to follow the judgment of Cowdroy J unless I thought it was plainly wrong. Nothing has been put to me this morning that would suggest it is plainly wrong, and in those circumstances it appears to me that what I ought do is dismiss the application and I so order. 4 I have been asked to order not only that Mr Croker pay the respondent's costs, but that they be paid on an indemnity basis. In my opinion, this is one of the rare cases where such an order should be made. The proceedings brought by Mr Croker were, as I have earlier indicated, in substance, proceedings of the same character that were heard and determined by Cowdroy J. It should have been apparent to Mr Croker that the proceedings were likely to result in them being dismissed. That matter was adverted to at a directions hearing, as was the issue of Mr Croker being potentially liable not only to pay the respondent's costs but that they be paid on an indemnity basis. It should have been apparent to Mr Croker that his case was, in effect, hopeless, and in those circumstances I propose to order costs on an indemnity basis, and I so order. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.