On 22 July 2010 Fullerton J made orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) prohibiting Clayton Robert Croker, the plaintiff herein, from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act, and staying any proceedings instituted by him before the date of the order: Attorney General of New South Wales v Croker [2010] NSWSC 942.
A similar order was made in respect of proceedings in the Federal Court of Australia by Perry J in Soden v Croker (No. 2) [2016] FCA 15; (2016) 334 ALR 540 pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth).
The plaintiff by summons filed 7 December 2017 seeks this order:
1. An order granting leave to proceed with the consumer claim matter in the New South Wales Civil & Administrative Tribunal or in the alternative to start the consumer claim in the Supreme Court of New South Wales, pursuant the (sic) Vexatious Litigation Act 2008 (NSW) (sic) and orders of the Court 22 July 2010.
This judgment concerns a preliminary determination under s 14 of the Act. It is not necessary for the applicant to be accorded an oral hearing for an application such as the present: Application by Bar-Mordecai [2013] NSWSC 1908 at [13]-[16].
Sections 14 to 16 of the Act provide:
14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section - as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on any person unless:
(a) an order is made under section 16 (1) (a), and
(b) the copy is served in accordance with the order.
(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c).
(5) An appropriate authorised court may dispose of the application by:
(a) dismissing the application under section 15, or
(b) granting the application under section 16.
(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.
15 Dismissing application for leave
(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:
(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or
(b) the proceedings are vexatious proceedings, or
(c) there is no prima facie ground for the proceedings.
(2) The application may be dismissed:
(a) even if an oral hearing is not held, or
(b) even if the applicant does not appear at any hearing of the application.
16 Granting application for leave
(1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must:
(a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and
(b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application.
(2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.
(3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate.
(4) However, the court may grant leave only if it is satisfied that:
(a) the proceedings are not vexatious proceedings, and
(b) there are one or more prima facie grounds for the proceedings.
…
Section 6 of the Act defines what constitute vexatious proceedings. That section provides:
Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
On 2 July 2017, in contravention of the orders made on 22 July 2010, the plaintiff lodged an application in the NSW Civil and Administrative Tribunal against the present defendants without having obtained leave to do so. On 24 August 2017 the second defendant wrote to the Registrar of NCAT drawing attention to the orders made by Fullerton J on 22 July 2010, and asking that the application be dismissed.
On 14 September 2017 the Tribunal made an order dismissing the proceedings "by operation of s 13(3)" of the Act.
NCAT, of course, is not a court of pleading. However, the basis of the plaintiff's claim can be found from three sections of the application headed "Agreement Details", "Order/s Sought" and "Reasons for the Order/s". Those sections of the application are as follows:
Agreement Details
The Samsung S7 (the phone) was purchased on the 26 October 2016 via Ebay, the phone was used with a Samsung Fast Charger (the charger). The phone and the charger were used nightly as advertised and on occasions the phone became very hot, on or about the 18 April 2017 Samsung Electronics Australia was contacted in regards to the alleged faulty phone. Samsung Electronics Australia gave instructions on a software reset that should of (sic) resolved the issue, the reset was performed and the phone the charger were used regularly again. The phone the charger again were very hot to touch. Samsung Electronics Australia again were contacted Samsung Electronics Australia stated that sine (sic) the phone was purchased from a (sic) overseas seller Samsung Electronics Australia could not assist with the alleged faulty phone.
Order/s Sought
An order to pay me the amount of $10000
Total Amount Claimed $10000
Reasons for the Order/s
Alleged loss, damage and costs and a fiscal disincentive for alleged violation of the Australian Consumer Codes and Laws of Australia.
Under section 14(5) of the Act, the Court has a discretion as to the disposition of the application. There are no matters to be considered or guiding principles under that sub-section. However, s 15 provides for three situations where the discretion is circumscribed. If any of the circumstances enumerated in s 15(1) are found, the Court must dismiss the application. The restriction in s 16(4) is usually considered as applying if the second stage has been reached, that is, where leave has been given under s 16(1) to serve the proposed proceedings on any relevant person and such person has been heard.
Apart from the matters mentioned, the discretion should be exercised bearing in mind the purpose of the Act, without losing sight of the fact that from time to time even vexatious litigants may have legitimate claims that require the commencement of proceedings.
In the light of the prescriptive provisions of s 15(1), it is first necessary to consider whether any of the matters in that subsection obtain.
The affidavit filed by the plaintiff sets out the facts associated with the purchase and use of the phone including the alleged overheating, the contact the plaintiff has had with Samsung Australia, and the commencement and dismissal of the proceedings in NCAT. The affidavit identifies that Samsung Australia told the Plaintiff that it is not liable to provide service for international units.
The plaintiff's affidavit suggests, but does not state, that the plaintiff purchased the phone and charger from suppliers outside Australia. The affidavit does not state if the plaintiff acquired the goods by way of an auction held on eBay. Those matters would impact on any potential liability of the proposed defendants under the Competition and Consumer Act 2010 (Cth) and, in particular, Schedule 2 to the Act being the Australian Consumer Law. It is not clear how, in those circumstances, either of the proposed defendants has any liability for the problems the plaintiff claims. I am not satisfied, therefore, that s 14(3)(c) has been complied with.
Attached to the plaintiff's affidavit, but not referred to in it, was a list described as being "the previous cases are required from 1999 to date". The list of cases appears to be all the cases brought by the plaintiff against various defendants together with three cases brought against him. That amounted to compliance with s 14(3)(b). However, the affidavit does not list any occasions where he has applied for leave under s 14. There is, therefore, no disclosure of which of the cases listed may have been brought with leave, nor occasions on which the plaintiff has sought, but been refused, leave. Section 14(3)(a) has not been complied with.
These failures to comply with s 14(3)(a) and (c) amount to substantial non-compliance with the sub-section, with the result that s 15(1)(a) requires the application to be dismissed.
Quite apart from the failure to comply with s 14(3), three other matters taken together would lead me to exercise my discretion against granting leave. The first is the matter discussed in [14] above. Without complete information about the purchase and the basis of the cause or causes of action, I cannot be satisfied that the plaintiff demonstrates a prima facie ground for proceedings against the proposed defendants.
Secondly, the Summons seeks an order that the plaintiff be given leave "to proceed" with the consumer claim in NCAT "or in the alternative to start the consumer claim in" this Court. In the first place, the claim in NCAT has been dismissed so it cannot be proceeded with. Further, the Act does not contemplate leave to continue with a claim commenced in contravention of the Act. Finally, it would be quite inappropriate to give leave to the plaintiff to make the claim in this Court when the subject matter involves goods purchased for less than $800 (see, for example Civil Procedure Act 2005 (NSW), S 146, and Uniform Civil Procedure Rules 2005 (NSW), r 42.34).
Thirdly, the reasons provided by the plaintiff on the NCAT application form for seeking an amount of $10,000 suggest that the claim is being instituted for reasons other than the seeking of legitimate compensation. That is a wrongful purpose, and in that way the proceedings are vexatious proceedings within the meaning of s 6(b) of the Act. That is also a significant factor when regard is had to the history summarised by Fullerton J in her judgment of the way that the plaintiff has misguidedly pursued proceedings.
I make the following orders:
1. Refuse leave to institute proceedings against Samsung Electronics Co Limited and Samsung Electronics Australia Pty Limited.
2. Dismiss the Summons.
[2]
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Decision last updated: 19 March 2018