Croker v Deputy Registrar of the High Court of Australia

AD(JR) Act claim 34 Mr Croker's written summary of argument was to the following effect (all errors appear in the original): (i) It is alleged practice and procedures, acts and omissions of the Deputy Registrar of the High Court of Australia are alleged to be bias, against the doctrine of general reliance, in bad faith, negligence, breaching duty of care, omissions to exercise statutory powers, in absence of statutory duty, breaching reasonable foreseeability of delay, excluding the doctrine of proximity, against policy considerations, public duty, and a misfeasance in public office. It is alleged that the loss of use of amenity has endangered the carriage of the applicant's undertaking and the probability of a successful result of the application [amongst other things]. (ii) It is alleged the Registrar of the High Court of Australia in it's practice and procedure of the matter has long exceeded the time specification in the High Court Rules 1952 (Cth) Order 69A Rule 13(1) and that the applicant is at no fault. The application was filed on the eighteenth day of December in the year two thousand and the six months ended on the eighteenth day of June in the year two thousand and one. (iii) Respondent has failed to adequately exercise statutory power and perform statutory duty; the failure to act has arisen contrary to make to me direct and indirect assertions. The chance granted to me by the Australian Parliament and been wilfully suppressed by the respondent. (iv) In addition it is alleged that the general reliance, duty of care and acts and omissions by Matthew Grey, Deputy Registrar has failed to comply with statutory requirements and in general been acts and omissions of gross and wilful negligence, bad faith and bias. 35 Mr Croker places reliance upon pars 5(1)(a), (b), (c), (f) and (j) and (2)(b), (d), (f), (g) and (j) of the AD(JR) Act. 36 The first difficulty is that the decision (if there be one) or conduct (for the purpose of s 6, though not specifically relied on) may not be a decision or conduct related to a decision "of an administrative character". 37 Section 17 of the High Court of Australia Act 1979 (Cth) provides that the High Court should administer its own affairs subject to, and in accordance with, that Act. Section 19 of that Act delineates the functions and powers of the Chief Executive and of the Principal Registrar. Subsection 26(7) provides: The Senior Registrar and Deputy Registrars are to perform such duties in respect of proceedings in the Court as are assigned to them by Rules of Court, by an order of the Court or by the Chief Executive and Principal Registrar. 38 What is "administrative" and what is "judicial" may not be amenable to comprehensive satisfactory definition: Burns v Australian National University (1982) 40 ALR 707, 714; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, 634; Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649, 657. 39 In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154, Toohey J held that the Federal Court had jurisdiction under the AD(JR) Act to review a decision of the Deputy Registrar of the Family Court not to accept a notice disputing a bill of costs sought to be lodged by the Legal Aid Commission. The decision was held to be administrative. Reference was made to what Windeyer J said in Kotsis v Kotsis (1970) 122 CLR 69, 92. The question as to what is "truly ancillary" or subservient to the adjudication of the Court is not easy. In Letts v Commonwealth of Australia (1985) 62 ALR 517, Toohey J once again dealt with the question. There his Honour held that a decision of the Registrar of the High Court to refer the matter to a Justice under O 58 r 4(3) based on the Registrar's view that the process was an abuse of process or frivolous or vexatious was not of an administrative character. Toohey J said at pp 519-20: The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was … part of the organization through which the powers and jurisdiction of the court were exercised…": Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission (WA) v Edwards, supra, may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that court. 40 In Little v Registrar of the High Court of Australia (1990) 24 FCR 391 Jenkinson J saw the character of the Registrar's function in striking the applicant's name from the Register of Practitioners as administrative. See also Northern Territory of Australia v Lane (1995) 59 FCR 332 and Attorney-General (Cth) v Queensland (1990) 25 FCR 125. 41 I am inclined to the view that this is a decision (if it be such) which is not administrative but of a judicial character of the kind described by Toohey J in Letts, supra. The actions of the Deputy Registrar were open to direct and indirect review by a Justice of the High Court. The Deputy Registrar was dealing with the conduct of the matter, in effect by way of directions. However, I do not propose to rest my decision on this view. 42 The second respondent argued that there was no decision for the purpose of s 5 of the AD(JR) Act. There is force to this submission. The deemed abandonment arguably came from the text of O 69A r 13(1) in the absence of a contrary order or direction. However, it may be argued that the correspondence of the Deputy Registrar displayed a decision not to order or direct to the contrary. Whether this was "under an enactment" is another question. I do not propose to rest my decision on a view about this question. 43 In the light of the evidence, I prefer to base my decision in respect of the AD(JR) Act claim on the failure of Mr Croker, on the merits, to make out any substantive argument or any foundation for a substantive argument. On the evidence before me there is no basis for a claim that the Deputy Registrar: (a) denied Mr Croker any aspect of procedural fairness; (b) failed to follow procedures otherwise required by law; (c) lacked jurisdiction or committed any jurisdictional error; (d) improperly exercised any power by failing to take into account any consideration, let alone any consideration required by legislation or other law to be taken into account, or by exercising any power in bad faith, or by exercising a power in accordance with a rule or policy without regard to the merits, or by exercising any power in a manner so unreasonable that no reasonable person could have exercised the power in that way, or by exercising the power in an abusive way. 44 In short there is no foundation whatsoever under any of the claimed heads of review. 45 Others may have given Mr Croker more time. However, I see no basis to criticise the Deputy Registrar's conduct at all. The wide ranging, unarticulated and serious assertions of wrong-doing on the part of the Deputy Registrar are without any foundation. 46 Further, even if I be wrong in any regard above, I would grant no relief in the light of the available course which I proposed and about which Deputy Registrar Carlsund advised Mr Croker. In the light of an available method of overcoming his present circumstances in the Court which was seized of the matter, being a court superior to this Court in the federal hierarchy, a course deliberately considered and hitherto (for over one year) rejected, I would see no basis for granting any relief under the AD(JR) Act, even if some ground had been made out, which I cannot see.

s 39B of the Judiciary Act 47 The Deputy Registrar is undoubtedly an officer of the Commonwealth. 48 Certiorari is sought. Jurisdiction to grant it is not vested by s 39B of the Judiciary Act. I leave to one side whether it is within the Court's jurisdiction by reason of the operation of s 32 of the Federal Court of Australia Act 1976 (Cth). The Court has jurisdiction to grant an injunction: subs 39B(1). Such an order could be moulded to stand procedurally as a substitute for certiorari if otherwise available. I leave to one side whether this Court has power to order an officer of the High Court to do or not do anything. 49 The grant of remedies identified in subs 39B(1), if otherwise available, is dependent upon the existence of a lack of jurisdiction in, or jurisdictional error exhibited by, the officer. No such jurisdictional error has been demonstrated as even arguable. Further, to the extent that such remedies may be seen as discretionary, I repeat what I said in [46] above. 50 For the above reasons the application should be dismissed. I see no basis whatsoever for any resistance to an order for costs. The application has displayed no substantive merit at all. If Mr Croker had had legal advice, and if he had persisted with the proceedings, a question of indemnity costs would certainly have arisen. Dr Challenor has been put to further expense in a case which lacks merit entirely, and in respect of the substance of which another Court could have dealt with the matter substantively (and indeed may still be able to do so). In these circumstances, I will grant the second respondent leave to apply to argue for a special costs order. 51 Before concluding, it is appropriate to deal with one further matter. As I have said, a number of requests were made of the High Court by the Federal Court, at the instance of Mr Croker, for documents in Mr Croker's various cases in the High Court. 52 In mid-2002 Mr Croker asserted that he had a right to photocopy these documents free of charge by reason of subregs 2(1) and (4) of the Federal Court of Australia Regulations 1978 (Cth). I refused to accede to that request, in part because I was not convinced of Mr Croker's need to make multiple photocopies at the expense of the Court. Mr Croker sought leave to appeal from that interlocutory decision. On 10 September 2002 Beaumont J stood his application over to 4 October 2002 on the basis of the prematurity of the application. Beaumont J said the following: In my opinion, Mr Croker's point is premature at this stage. I am not satisfied that Mr Croker can show a real need to photocopy any material. However, I propose to give him an opportunity to demonstrate this to the satisfaction of the docket Judge, who has control of the management of the litigation. 53 On 10 September 2002 (having read the reasons of Beaumont J) I said the following to Mr Croker at a directions hearing: His Honour: I have read it [Beaumont J's reasons] Mr Croker. Mr Croker, I order you on or before noon on Thursday, 19 September, to identify by numbered sticker on the documents produced by the High Court which documents you wish to photocopy. I order that by noon on that day you file … a statement setting out in respect of each document why you need to photocopy it including a statement as to whether it is proposed to tender the document. After 19 September I will re-visit your application for waiver of photocopying charges. Now, Mr Croker, have you any further request for any further documents from the High Court? Mr Croker: Your Honour, not if compliance has been--- His Honour: You have seen the documents that have come from the High Court pursuant to a request which is the equivalent of a subpoena. Mr Croker: Certainly, your Honour, but I haven't seen the last batch that has come down. I can do that today. His Honour: Good, thank you. I further order that on or before 12 noon Friday 13 September, the applicant deliver to the Federal Court Registry any further request in writing for documents that he wishes to be made to the High Court of Australia. So that is this Friday. If you look at those documents today; if you want to frame a last request if it be the case that you think that there may be documents that have not been produced. We will deal with any documents that come, if there are any further documents to come, pursuant to that request in the fullness of time. … His Honour: Now, Mr Croker, if you deal with the documents in the Registry as I've indicated I'll re-visit the question of photocopying. I want to know which documents you want to photocopy, why you need to photocopy it including a statement as to whether you propose to tender the document. That should produce, in effect, a bundle of documents that you wish to tender. It will also produce a list of documents that you wished to comment on, those two classes of documents probably being co-extensive I would have thought, would they not? You won't be commenting on it in an affidavit if the document is not being put into evidence? Mr Croker: No, your Honour. His Honour: That would be fair enough. Mr Croker: It would be a list of facts stated, which would be relevant to the documents. His Honour: Yes. You would put them in a bundle and you will then want to say something about them, will you? Mr Croker: Yes, your Honour, or annex them to the affidavit. [emphasis added] 54 Mr Croker did none of the things that he was ordered to do by 19 September 2002. 55 Nevertheless, Mr Croker appeared before Beaumont J on 4 October 2002, and submitted as follows (as appears form the published reasons of his Honour dated 4 October 2002): On the tenth of September in the year two thousand and two the applicant demonstrated to the docket Judge that the documents would be annexed to the final affidavit of evidence and furnished annotations would be commentary to the documents. The docket Judge stated that the requested documents would be better prepared in the way of a bundle of documents complimenting [sic] the affidavit and requested that all documents be marked with numbers [sic] stickers in the registry. The request in the application was as follows:- "(3) An Order that compliance with Federal Court of Australia Regulations 1978 (Cth) Reg 2 in regard to photocopying fees be adhered to;" This request was based on several statutory standings and common law in allowing a litigant to copy documents at no charge that are held in the registry of the Federal Court of Australia and to prepare his case in accordance with statutory and other legal requirements. As to date no direct answer has been given to the request for compliance and no direct answer to the request for leave to appeal has been forwarded. It is alleged gross infractions of the applicants [sic] rights has to date been installed on the applicant and further gross infractions of the applicants [sic] rights seem to be pending it is requested that the first application be ruled on it merits and that the judgment of the docket judge by attended by sufficient doubt to warrant it being reconsidered by the Full Court and the substantial injustice that the docket judge has installed on the applicant be set aside. As to the requested adjournment medical evidence has been forwarded to Deputy District Registrar stating time constraints caused by the pending medical procedure. If further consideration could be attended to the application for an adjournment and the matter stood over to after the twentieth day of October personal appearance and a more substantial argument would be filed. 56 Mr Croker made no attempt to identify the matters I ordered to be done. The matter was listed for hearing on 16 December 2002. On 26 November 2002 I caused my associate to send by email a letter in the following terms to Mr Croker: His Honour has asked me to write to you in respect of the hearing of the above matter set down for Monday 16 December 2002 at 2.15 pm. On 7 August 2002 an order was made that the cost of photocopying charged to the applicant by the Court in respect of the copying of documents produced upon subpoena or upon request to third parties be reduced to 50 cents per page. The applicant sought leave to appeal this order. The matter was heard by Beaumont J who said that the appeal was premature. The matter came back before his Honour on 10 September 2002. On that day, his Honour reconsidered the application in order that he could consider further the application for copying at no cost and his Honour ordered that on or before 12 noon 19 September 2002, the applicant identify the documents produced by the High Court of Australia which he wishes to photocopy by placing numbered stickers on those documents, and that the applicant file and serve on the second respondent a statement setting out, in respect of each document, why the particular document needs to be photocopied and whether the applicant proposes to tender that particular document. By these orders, his Honour was leaving open for further consideration which of the documents produced by the High Court the applicant needed to photocopy. No steps have been taken by the applicant to identify any document pursuant to these orders. The matter is set down for hearing on 16 December 2002. If the applicant wishes to make photocopies of any of the documents produced by the High Court for the purpose of preparing for the case or for tendering by way of evidence, he needs promptly to identify the matters referred to on 10 September 2002. His Honour will then decide whether copying is appropriate and whether any charge should be levied. Thus, his Honour orders that: 1. On or before 4 pm 4 December 2002, the applicant is to identify the documents produced by the High Court of Australia which he wishes to photocopy by placing numbered stickers on those documents; and 2. On or before 4 pm 4 December 2002, the applicant is to file and serve on the second respondent a statement setting out, in respect of each document, why the particular document needs to be photocopied and whether the applicant proposes to tender that particular document. If the applicant wishes to have documents photocopied, he will need to comply with these orders. The question of photocopying is not merely a question of costs and fees. There is no entitlement to photocopying access as of right. The documents in question are of the High Court of Australia. If the applicant wishes to have photocopy access to them his Honour has indicated that the applicant will need to identify which documents are required to be photocopied. No written submissions have been received from the applicant pursuant to order 4 of the orders of 10 September 2002. His Honour is prepared to extend the time for the applicant's written submissions to Wednesday 4 December 2002 at 4 pm. This is not a guideline. It is an order of the Court required to be complied with in relation to the hearing of this matter on 16 December 2002. His Honour draws the parties' attention to what he said on 10 September 2002, that if no written submissions are filed, the parties will be limited to brief oral submissions. His Honour does not propose to conduct the hearing on the basis of unconstrained oral submissions in circumstances where written submissions have not been filed contrary to orders of the Court. His Honour notes that if the second respondent is to participate in the hearing, his Honour extends time for his filing and serving of written submissions to 4 pm 11 December 2002. His Honour will take it from the absence of evidence thus far filed by the second respondent that no evidence is to be filed. The second respondent will need to make an application for the filing of evidence if he so wishes. The parties have liberty to apply on 3 days' notice in writing directed to the District Registrar. I confirm that the matter is listed for hearing at 2.15 pm on Monday 16 December 2002. [emphasis in original] 57 On 4 December 2000 Mr Croker filed a document in the Registry entitled "Statement Concerning Relevance of the Requested Documents from the High Court of Australia Registry" the terms of which were as follows: It is alleged that all documents requested from the High Court of Australia Registry and received by the Federal Court of Australia Registry in matters concerning Clayton Robert CROKER are relevant as evidence in this Federal Court of Australia undertaking. There are two hundred and seventy five documents in three bundles that have been received by the Federal Court of Australia Registry. The first bundle received by the Federal Court of Australia Registry consists of consist of [sic] document No. 1-139 received by the Federal Court registry on 14th the [sic] day of May in the year two thousand and two. The second bundle consists of document 140-209 received by the Federal Court registry on 21st the [sic] day of June in the year two thousand and two. And the third bundle consists of 210-275 received by the Federal Court registry on 1st the [sic] day of August in the year two thousand and two. In total approximately 539 pages. It is requested that all the above documents are tended [sic] to the Court on the 16th day of December in the year two thousand and two and that photo coping [sic] fees are waiver [sic] so the applicant is not the only party with out [sic] a copy of the documents. 58 As can be seen the document did not comply with order 2 set out in the letter dated 26 November 2002 ([56] above). 59 Notwithstanding this failure, I made orders on 9 December 2002 the terms of which were communicated to Mr Croker by email in a letter that I caused my associate to send on 9 December 2002, which was in the following terms: I refer to the "Statement Concerning Relevance of the Requested Documents from the High Court of Australia Registry" filed by the applicant on 4 December 2002. His Honour has made orders on 9 December 2002 as follows: 1. Leave be granted to the applicant and the second respondent to be provided with copies, at no charge, of all of the documents produced by the High Court of Australia. 2. Neither party make any further photocopy of any of the said documents. 3. The parties have liberty to use the copy documents supplied only for the purpose of these proceedings, without a further order of a Judge of the Court of the High Court of Australia. As these orders indicate, the Court will make those copies, and you will be notified when they are available for collection. The Court has not yet received any submissions from the applicant as contemplated by the orders conveyed in the letter of 26 November 2002. In these circumstances the submissions of the parties will be restricted to oral submissions as referred to in that letter. 60 Mr Croker made no specific reference to these documents in oral address in support of his argument. 61 At no time at the hearing did Mr Croker put any submission that the course adopted by me concerning the documents had caused him any prejudice at the hearing, or in preparation for the hearing. 62 The orders of the Court will be: (a) that the application be dismissed; (b) that the applicant pay the respondents' costs; (c) that the second respondent be granted liberty to relist the matter within 7 days to vary order (b); and (d) that the parties not enter order (b) for a period of 7 days from the date of the making of these orders. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Date of Hearing: 20 December 2002

Date of Judgment: 3 February 2003