Croker v Samsung Electronics Co Ltd

Judgment

1. 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.
2. 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).
3. 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.
4. 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].
5. 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. …