Croker v Department of Education and Training

REASONS FOR JUDGMENT BUCHANAN J: 1 On 20 March 2009, Emmett J dismissed proceedings brought by Mr Croker against the Department of Education and Training New South Wales (Croker v Department of Education and Training (NSW) [2009] FCA 350). He did so because the application brought by Mr Croker disclosed, relevantly, only allegations about the conduct of the Sydney Institute of Technology TAFE, New South Wales and the correct respondent to the proceedings which Mr Croker had attempted to commence would have been the Technical and Further Education Commission, a body corporate formed under the Technical and Further Education Act 1990 (NSW). That body may use and act under the name TAFE Commission. 2 Although his Honour did not specifically identify the source of power to dismiss the proceedings, such power is granted to the court by s 31A of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). It makes no difference that the power is not identified upon the occasion of its use (see R v Graham; Ex parte Moore (1997) 138 CLR 164). The judgment handed down by Emmett J on 20 March 2009 was, in form, an interlocutory judgment because there were other matters that required attention. As the respondent has pointed out in written submissions provided today, it also did not foreclose Mr Croker's capacity to commence further proceedings against a different respondent, a matter to which Emmett J expressly averted. Indeed, his Honour declined to make any order restraining Mr Croker from commencing further proceedings. 3 Mr Croker has filed a notice of motion seeking leave to appeal in accordance with O 52 r 10(2) of the Federal Court Rules. The notice of motion insofar as it seeks leave to appeal against the judgment given on 20 March 2009 is, as the respondent's written submissions point out, brought out of time. The respondent opposes an extension of time being granted in which to appeal and points out that authority in this court is to the effect that special reasons must be shown to support an application for an extension of time to lodge an application for leave to appeal (see Sharman License Holdings Limited v Universal Music Australia Pty Ltd [2005] FCA 802 at [20]). For reasons which include those which I will outline shortly, I am not satisfied that special reasons have been shown for an extension of time in which to bring the notice of motion and for that reason alone the notice of motion should be dismissed. 4 Mr Croker attached a draft notice of appeal to his affidavit in support of the notice of motion. The grounds of appeal are confused and some are quite evidently unrelated to the matters dealt with by Emmett J. For example, there is some reliance placed upon a Legal Services Direction 2005 issued pursuant to the Judiciary Act 1903 (Cth) under which the Commonwealth of Australia must act as a model litigant. Such matters are quite irrelevant to the present proceedings. One ground of appeal alleges bias, presumably by Emmett J. There is no support of any kind for such a suggestion in the affidavit filed in support of the notice of motion, which does little more than repeat the proposed grounds of appeal. I will disregard this allegation. The draft grounds of appeal do not address at all the defect identified by Emmett J. 5 Order 52 rule 2AA of the Federal Court Rules commits an application for leave to appeal in the first instance to a single judge of the Court. An appeal against the order dismissing the earlier proceedings would be without any prospect of success. Leave to appeal against the order dismissing the proceedings, accordingly, should not be granted. 6 The notice of motion also apparently seeks leave to appeal against an order made by Emmett J on 1 April 2009 that Mr Croker pay the respondent's costs in the amount of $9,500 (Croker v Department of Education and Training (NSW) (No. 2) [2009] FCA 351). It would seem that Mr Croker did not appear when Emmett J dealt with an application by the respondent for lump sum costs, although he was clearly on notice that the matter would be dealt with on 1 April 2009. The only matter in the draft grounds of appeal touching upon the costs order is a ground which reads: "It is alleged that the functions of a taxation officer should not be set aside in matters of bills of costs." 7 The Court has power to make orders for a gross sum of costs under O 62 r 4(2)(c). Again, there is no prospect that an appeal could succeed. The costs order is clearly ancillary to the order dismissing the proceedings. Leave to appeal against it should not be granted. 8 It was pointed out by the respondent in submissions today, by reference to the transcript of proceedings before Emmett J on 20 March 2009, that during the course of those proceedings Mr Croker had, after the defect in the proceedings had been drawn to his attention, consented to the application being dismissed. In due course, it was not dismissed because the respondent wished to proceed to seek an order for costs and preferred that the application be dismissed pursuant to a motion which it had filed seeking that outcome. However, that does not obscure the fact that the present proceedings contradict what was stated by Mr Croker to Emmett J. To the extent that any occasion arose to exercise a discretion, either with respect to the grant of leave to file the notice of motion or leave to appeal, it is inevitable that such a discretion would be exercised against Mr Croker. 9 One further matter should be mentioned. There is no indication in his Honour's judgment that he acted under O 20 r 5 on the basis that the proceeding was frivolous, vexatious or an abuse of process or under O 11 r 16 which only deals with striking out pleadings. However, I earlier indicated that the power exercised by Emmett J was granted at least by s 31A of the FCA Act. There is some debate, not yet resolved in this Court, whether an order dismissing a proceeding under s 31A of the FCA Act is final or interlocutory or sometimes final and at other times interlocutory. There may be room for an argument, therefore, that Mr Croker did not require leave to appeal. 10 Section 31A applies to appeals as well as to proceedings at first instance. Under s 25(2B) of the FCA Act, a single judge may give summary judgment on an appeal. The attempt to secure leave to appeal by the notice of motion which Mr Croker filed, or to appeal, was quite misconceived. The proceedings which he originally commenced were devoid of any legal foundation. The challenge to Emmett J's judgments was without any prospects of success or any redeeming features. I am satisfied that, if necessary, Mr Croker's attempt to initiate an appeal may be dismissed under s 31A of the FCA Act and that I have power to make such an order. 11 There is no reason why costs should not follow the event. 12 The formal order which I will make is that the notice of motion filed on 7 April 2009 be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.