Croker v Commonwealth of Australia

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to extend the time in which the applicant may file an application for leave to appeal against a decision of Cowdroy J. His Honour dismissed the proceedings before him as being an abuse of the process of the court and also found that they were frivolous and vexatious within O 20 r 5(1)(a) and (b): Croker v Commonwealth of Australia [2008] FCA 452. 2 His Honour set out in detail in his reasons why the proceedings were an abuse. In my opinion there is not the slightest reason to doubt that his Honour was correct, for the reasons that he gave, that they are correctly characterised as an abuse of the process of this Court. As his Honour noted, the claim arose out of Mr Croker's dissatisfaction with his purchase of a pair of cufflinks for $50 from the High Court of Australia in late 2003. 3 Despite a number of attempts by him to litigate those matters of dissatisfaction in the Consumer, Trader and Tenancy Tribunal of New South Wales, before the Supreme Court of New South Wales, in the High Court of Australia and in this court, Mr Croker ultimately had proceedings, which he had instituted in this Court, transferred to the Federal Magistrates Court in early 2007. They came before Lloyd-Jones FM, who ordered Mr Croker to provide security for costs of the Commonwealth in the sum of $30,000 by 4.00 pm on 11 September 2007 and Mr Croker was also granted leave to file and serve an amended application by that date. He neither provided the security for costs nor filed any amended pleadings pursuant to the leave granted to him. Instead, before the expiry of the time fixed by the Federal Magistrates Court for those steps to be taken, he filed an application in this Court seeking leave to appeal against those orders. Buchanan J dismissed that application on 17 October 2007: Croker v Commonwealth of Australia [2007] FCA 1593. 4 On 31 October 2007, Lloyd-Jones FM stayed the proceedings in the Federal Magistrates Court pending the payment of the amount for security for costs and ordered that, if that security were not paid by 5.00 pm on 16 November 2007, the proceedings in that court would be dismissed. Mr Croker did not pay that amount. On 6 March 2008, Lloyd-Jones FM dismissed the proceedings and ordered Mr Croker to pay the costs of the Commonwealth. 5 In the meantime, on 4 December 2007 Mr Croker instituted proceedings that were ultimately the subject of Cowdroy J's judgment in which he claimed $200,000 based on, as his Honour found, the same facts as had been relied on in the Federal Magistrates Court proceedings. 6 The absurdity of this claim is self-evident from the damages sought, the basis for which Mr Croker never particularised. The purchase of a $50 pair of cufflinks, however defective, could not conceivably give rise to a claim for damages of $200,000. The proceedings had, on their face, a demonstration of their vexatiousness and absurdity. Cowdroy J, found that the facts giving rise to Mr Croker's claim and the relief he sought were the same as he had sought in the Federal Magistrates Court, except that the damages he had claimed had increased from the original $100,000 to $200,000. 7 Although Mr Croker made claims under s 52 of the Trade Practices Act 1974 (Cth), in contract for breach of warranty and damages for "wrongfully defending a claim", it is impossible to see how anyone could claim for a simple consumer purchase of $50, damages in an amount of either $100,000 or $200,000. His Honour found that Mr Croker had a genuine belief that the proceedings before him had been instituted after the Federal Magistrates Court proceedings had come to an end on 31 October 2007. However, Cowdroy J said that the institution of the current proceedings before him had been made in respect of the same claim. He found that identical circumstances prevailed except that Mr Croker had increased the amount of damages which he particularised as having been suffered. 8 His Honour pointed out that Mr Croker had led no evidence to suggest he might be impecunious or otherwise unable to pay the amount of security for costs ordered by Lloyd-Jones FM. His Honour set out Mr Croker's explanation, as to why he had not proceeded in the Federal Magistrates Court, which he gave to Cowdroy J at the hearing of the application in which his Honour found the proceedings to be an abuse of process: see Croker [2008] FCA 452 at [54]. Mr Croker told Cowdroy J: "Your Honour, I found that there was a security for costs issue that was difficult for me to meet also the production of documents was being to be insisted which I thought were irrelevant relevant [sic] to the matter and I was really looking at the legal services directions, your Honour and my understanding is that they are enforceable under the Judiciary Act 1903." 9 The last reference was to the directions under s 55ZF of the Judiciary Act 1903 (Cth) given by the Attorney General as to how litigation ought be conducted on behalf of the Commonwealth. Cowdroy J also asked Mr Croker how he quantified his claim for damages. He suggested that "opportunity costs would be won", identifying the opportunity in the following exchange which his Honour set out: Croker [2008] FCA 452 at [55]. "MR CROKER: Your Honour, I would have to go into more detail to give you - I'd have to more time. HIS HONOUR: All right. I'm ready to hear that detail. MR CROKER: Your Honour, I wouldn't be able to do it straight away. I'd have to do some research and give you exactly what would be legally ‑ ‑ ‑ HIS HONOUR: You mean to say at the moment you cannot quantify your loss. MR CROKER: Well, your Honour, I would estimate it as a nominal amount in damages or loss in the way that it is an amount which I think is reasonable for -" 10 As his Honour found, the Commonwealth's request for particulars of damages sought in the Federal Magistrates Court proceedings was an appropriate step. In the absence of any response it was also appropriate that the Commonwealth sought an order that Mr Croker provide documents to support that claim. He did not comply with that order and that led to the Commonwealth's application for security which Lloyd-Jones FM granted. 11 Cowdroy J found no basis for Mr Croker's assertion that the Commonwealth had acted otherwise than in accordance with the standards expected of it as a model litigant under the Legal Services Directions 2005 made pursuant to s 55ZF of the Judiciary Act. His Honour was mindful that the power to strike proceedings out or to dismiss them should only be used in exceptional cases where the facts disclosed a clear case of abuse. He found that the current proceedings before him had been instituted solely for the purpose of circumventing the orders made by Lloyd-Jones FM in the proceedings before the Federal Magistrates Court. His Honour concluded that (Croker [2008] FCA 452 at [59]): "An applicant is not entitled to commence fresh proceedings because orders are made in earlier proceedings with which that applicant disagrees. Such conduct obstructs the administration of justice and accordingly constitutes an abuse of process." 12 His Honour was also mindful of the frivolous nature of the claim and the fact that the Commonwealth had been put to expense out of all proportion to any damages that could be realistically awarded in Mr Croker's favour: Croker [2008] FCA 452 at [61]. Far from seeing any possible error or injustice in his Honour's reasoning, it appears to me to be entirely apposite and correct.