Croker v Deputy Registrar of the High Court of Australia

REASONS FOR JUDGMENT 1 The applicant seeks relief under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) and s 39B of the Judiciary Act 1903 (Cth) against the Deputy Registrar of the High Court of Australia (the first respondent) in respect of what the application describes as a decision of the Deputy Registrar (Mr Grey) on 14 September 2001 under O 69A r 13(1) of the High Court Rules. 2 The application is somewhat confused; however the claims of the applicant as contained in the application are as follows (all errors appear in the original): 5. An order for a writ of certiorari quashing the decision of the respondent dated the 14th day of December 2001 (HCA No S.296 OF 2000) as to the breaches of the Administrative Decisions (Judicial Review) Act (Cth) 1977, secs 5(1)(a). 5(1)(b), 5(1)(c), 5(1)(f), 5(1)(j), 5(2)(b), 5(2)(d), 5(2)(f), 5(2)(g), and 5(2)(j). And the High Court Rule 1952 (Cth) Order 69A Rule 10(9) and 13(1). 6. An order for a writ of mandamus compelling the respondent to accept the Application Books in the undertaking Clayton Robert Croker Applicant - and - George Challoner Respondent No S.296 of 2000 HCA. And set a date for hearing. 7. That the High Court Rule 1952 (Cth) ORDER 69A RULE 13(1) be dispensed with. 8. That the respondent pays the sum of $1,000,000.00 9. That the respondent pays damages. 10. The respondent pays the cost of the application. 11. Such other orders as the Court thinks fit. 3 The second respondent to the proceedings, Dr George Challoner, was joined to the proceedings in circumstances to which I will come. 4 On 18 December 2000 Mr Croker filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia against Dr Challoner. The application concerned orders of the New South Wales Court of Appeal (Mason P, Powell JA and Fitzgerald JA) which dismissed a motion for review of a judgment of Giles JA dismissing what was, in essence, an application for an extension of time to appeal against a decision of Sinclair DCJ. That conclusion cuts through some of the procedural confusion in the Supreme Court caused by Mr Croker's various applications. Giles JA concluded by saying: 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. 5 Powell JA, after setting out the history of the matter, said the following: 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. 6 The matter before Sinclair DCJ was described by Giles JA in his reasons as follows: Mr Croker sued Dr Challoner in the District Court, claiming damages in relation to dental treatment. On 6 August 1999 Sinclair DCJ ordered that his claim be struck out, in short on the grounds that the pleading did not disclose a cause of action and that, despite ample opportunity to do so, Mr Croker had not provided particulars requested by Dr Challoner which may have enabled content to be given to the pleading. 7 On 8 January 2001, Deputy Registrar Carlsund wrote to Mr Croker informing him, amongst other things, of the temporal requirements of O 69A rr 6, 7, 8 and 9 of the High Court Rules. Mr Croker's attention was specifically drawn to O 69A r 13. The letter concluded as follows: I draw your attention to Order 69A rule 13, which provides for the abandonment of an application by delay. Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court, a Justice or Registrar has otherwise ordered or directed. On the request of the respondent the Registrar shall provide a certificate of deemed abandonment and Order 69A rules 12(2), (3) and (4) with respect to the payment by the applicant of the respondent's costs shall apply. The Court regards compliance with these time limits as critical to the disposition of the application. Accordingly, extensions of the time limits provided in Order 69A will only be granted in exceptional circumstances. If I can be of further assistance, please contact me on [number provided]. [emphasis in original] 8 On 15 January 2001 Mr Croker filed in the Office of the Sydney Registrar his summary of argument. He thus complied with O 69A r 6, in terms of time of filing. 9 Dr Challoner filed his summary of argument on 15 February 2001, to which Mr Croker apparently filed a reply on 26 February 2001. On 7 March 2001 Deputy Registrar Carlsund indicated that two notices of motion from the Court of Appeal proceedings should be filed by 4 April 2001 to enable a draft index to be prepared. 10 On 10 July 2001 Deputy Registrar Grey wrote to Mr Croker appointing Thursday 26 July 2001 at 3 pm as the date and time to settle the index for the application book in accordance with O 69A r 10(2). A draft index was enclosed. The letter also contained the following invitation and information: …If you wish to include material in the application book that is not listed in the draft index, a copy of that material should be brought to the appointment to settle the index. On that date, information will also be provided concerning preparation of the application books and possible dates for hearing. 11 I interpolate at this point that in par "xxiv" of his affidavit sworn 22 February 2002, Mr Croker alleges, without particulars or any coherent explanation, that the "act of changing sole carriage" of the proceeding from Deputy Registrar Carlsund to Deputy Registrar Grey was an act of bad faith. It is not said by whom. The assertion is baseless and should not have been made, even by a litigant in person. 12 A conference was held on 26 July 2001 to settle the index. On 27 July 2001 Deputy Registrar Grey wrote to Mr Croker in the following terms, enclosing a further draft of the index: Could you please provide me with copies of those documents marked with an asterisk by 31 July 2001? I advise that failure to provide me with those documents may result in the hearing of your matter being delayed. As soon as I have received the requested documents I will settle the index. At this stage, I have tentatively set 5 September 2001 as the date for the Application Books to be filed and 14 December 2001 as the date for this matter to be heard. 13 The draft index had eighteen documents listed: two from the District Court of New South Wales, eleven from the Supreme Court of New South Wales and five from the High Court. All were Court documents. 14 In par "xxv" of the affidavit of Mr Croker he made complaint about the conduct of the Deputy Registrar at this conference on 26 July 2001. The paragraph reads as follows (all errors are contained in the original): …In addition the Matt Grey, Deputy Registrar of the Hight Court Australia was informed and requested to co-operate with payment dates of Australian Government Pension that applicant is a receipt of, applicant sore this as a reasonable request, the request fell on deaf ears. This is alleged to be further acts of bias and bad faith. 15 I make the same comments about this assertion of bias and bad faith as I did at [11] above. 16 Mr Croker then apparently spoke to Deputy Registrar Grey, telling him that one of the documents in the draft list did not exist. Thereafter, on 3 August 2001 Deputy Registrar Grey wrote to the parties in the following terms: Enclosed is a copy of the settled application book index, along with an information package on how to prepare the application books. Please ensure that seven copies of the application books are filed in the Registry by 4.00 pm on 5 September 2001. Three copies must also be served on the solicitors for the respondent by this date. It is expected that this matter will be listed for hearing on 14 December 2001. [emphasis in original] 17 In par "xxxiii" of his affidavit Mr Croker said, in respect of this index: The said settled index is review [sic] by applicant and is seen to be in need of redrafting again. 18 No details were given in the affidavit of the alleged inadequacy of the draft index in the affidavit. No evidence was given by Mr Croker of any contact with Deputy Registrar Grey at this point. 19 On 7 September 2001 (Mr Croker being now out of time for the filing and serving of the application books), Deputy Registrar Grey wrote to Mr Croker in the following terms: I refer to my letter of 3 August 2001 in which it was directed that the application books be filed and served by 5 September 2001. As yet the books have not been received in this office. I shall extend the time for filing of the books until 4.00 pm on Friday 14 September 2001. Unless the books are filed by this date the matter shall be deemed abandoned pursuant to Order 69A Rule 13(1) of the High Court Rules. [emphasis in original] 20 Mr Croker gave evidence in his affidavit that on 14 September 2001 he had a conversation with Deputy Registrar Grey at the Sydney Registry. The conversation was said by Mr Croker to have been in the following terms: Mr Grey: You will need to file your application books today or you are at risk of the undertaking being abandon [sic]. Mr Croker: They (application books) will be file [sic] on Wednesday (ninetieth [sic] day of September in the year Two Thousand and One) if that is any comfort. Mr Grey: It's no comfort too [sic] me, it's your undertaking! 21 The first respondent filed a submitting appearance. There was no evidence contesting this conversation. 22 In par "xxxvii" of his affidavit Mr Croker sought to explain why he could not file the application books until 19 September 2001: The response was that the Wednesday the ninetieth [sic] day of September in the year Two Thousand and One would be the only time in which the application books could be filed due to financial disability and time availability. 23 On 14 September 2001, the day of the conversation with Mr Croker and the last day (already once extended) for the filing of the application books, Deputy Registrar Grey wrote the following letter to Mr Croker: I refer to your Application for Special Leave to Appeal. As you have failed to comply with the relevant provisions of Order 69A of the High Court Rules, your Application for Special Leave to Appeal is deemed to have been abandoned as from today. This has been done in accordance with Order 69A, Rule 13 of the High Court Rules. 24 Order 69A rule 13 is, relevantly, in the following terms: (1) Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed. 25 The effect of the subrule itself is to cause the application to be deemed abandoned, which consequence is avoided by the "Court or a Justice or Registrar" otherwise ordering or directing. ("Registrar" includes Deputy Registrar: O 1 r 5.) Thus, the decision or act of the Deputy Registrar at this point could be no more than a decision not to order or direct otherwise for the purpose of O 69A r 13. 26 It is this decision or act in respect of which Mr Croker comes to the Federal Court of Australia for remedies in the terms claimed. The application, as set out at [2], was filed on 8 October 2001. 27 The matter came before me on 4 December 2001. At that point the only party to the proceedings was the Deputy Registrar. A submitting appearance was made. I directed Mr Croker to file points of claim in order to better understand his complaints. On 18 December 2001, the matter came before me again. I spent some time explaining to Mr Croker that if, as he said, he had a valuable claim against Dr Challenor (not a party at this point), he should perhaps take all steps possible to resuscitate his High Court application. I explained that if he did this, a Justice of the High Court, upon having the matter explained to him or her with evidence, might reverse the abandonment. I also explained that if this course was not taken there may be an impact on his case in the Federal Court. I also ordered that Mr Croker file an affidavit setting out all relevant matters by 19 February 2002 and that he file a summary of his argument. I also told Mr Croker that if he proceeded in this Court without going to the High Court, he would have to join Dr Challenor because of his obvious interest in the matter. 28 On 21 February 2002, in an extended directions hearing, I discussed with Mr Croker his evidence and courses of action available to him. I said the following: There's a question as to whether… this court can issue a prerogative writ to an officer of the High Court registry. Leave that aside, the point I was making last time was that if you want to have your appeal heard by the High Court or your special leave application heard by the High Court and there is now a deemed abandonment in your way one way of dealing with that is to move the court or a Justice of the court for orders granting you leave to proceed with the special leave application and to overcome the effect of a deemed abandonment under the Rules. Now, you'll need to have all your documents ready to go before the High Court, that is, the application book prepared and say I am ready and the circumstances of the deemed abandonment were as follows and you need to explain as you've explained in this affidavit that the only reason you couldn't do it by the 14th was the lack of the funds from your pension. That doesn't come out clearly in this affidavit. You may have to make that clear. Now, if a Judge of the High Court refuses to permit you to overcome the abandonment then so be it. If he or she does then you can have your special leave application. It seems to me that if it is a valuable - if you've got valuable rights there the right way, the most appropriate way to try and protect them is to ask a Judge of the High Court, a Justice of the High Court to undo the effect of the deemed abandonment. 29 I stood the matter over to 26 March 2002, indicating that should Mr Croker not wish to so move the High Court, he should join Dr Challenor, who should be asked to attend on the next occasion. 30 In early March 2002, Mr Croker made enquiry of Deputy Registrar Carlsund seeking help of a practical nature as to the appropriate way to set aside the abandonment of the proceedings. On 6 March 2002, Deputy Registrar Carlsund wrote a letter to Mr Croker (which was sent by email) in the following terms: I refer to your e-mail of 4 March 2002 inquiring about an application to this Court to set aside the deemed abandonment of the above matter. You have two options: 1. File a further application for special leave to appeal in which you seek an order to dispense with the requirements of Order 69A Rule 3(1). You will need to file an affidavit in support together with the documents listed under Order 69A Rule 2(2). 2. File a Chamber Summons with an affidavit in support. This is not an application in the nature of a review of Registrar Grey's decision, but a summons seeking an order of a Justice invoking the power of the Court referred to in Order 60 Rule 6 of the Hight Court Rules. 31 Notwithstanding the clarity and simplicity of the advice, Mr Croker decided to make no application to the High Court, nor did he take any further steps in the High Court in an effort to resuscitate or replace his application for special leave. 32 During the course of 2002, Mr Croker made a number of requests for documents from the High Court. The Federal Court expressed these requests by letter to the High Court. The requests were for documentation in the High Court concerning proceedings brought by Mr Croker against parties, other than Dr Challenor. Those documents were produced. They were tendered. I will say something about this at the end of these reasons. 33 The documents produced by the High Court were relied upon by Mr Croker to show what he says is some practice in the High Court inconsistent with the approach of Deputy Registrar Grey. The last sentence may overstate the matter. At the hearing Mr Croker made no specific reference to the documents that he tendered (although it should be noted that references were made to certain of these documents in the Applicant's Summary of Argument filed on 25 March 2002). I have examined the documents tendered. I do not propose to burden this judgment with reference to them beyond saying that there is nothing in them which assists in any way in assessing the lawfulness and appropriateness of Deputy Registrar Grey's conduct in respect of Mr Croker's application against Dr Challenor. Some matters reflected in the documents took longer than others. Delay was tolerated in some, for reasons which are unexplained by the evidence.