Croker v Sydney Institute of TAFE

REASONS FOR JUDGMENT 1 The applicant, Mr Clayton Robert Croker, brought a proceeding in the Federal Magistrates Court alleging contravention of the Disability Discrimination Act 1992 (Cth) on the part of the respondents, the Sydney Institute of TAFE (State of New South Wales) ('the State') and the University of Technology, Sydney. After a hearing on 9 May 2003, Raphael FM ordered that the application be dismissed pursuant to Pt 13 r 13.10 of the Federal Magistrates Court Rules, on the basis that the claims as articulated by Mr Croker in the proceeding were clearly without merit and should not be permitted to go to trial in the ordinary way because it was apparent that the claims must fail: see Croker v State of NSW [2003] FMCA 181. 2 On 19 May 2003, Mr Croker filed an application to this Court for leave to appeal from the interlocutory order of the Federal Magistrates Court. That matter came before Bennett J on 11 July 2003 for directions. On that day, the State filed in Court, with her Honour's leave, an application by notice of motion seeking an order that Mr Croker provide security for the costs of the proceeding in this Court. Her Honour gave directions for affidavits relating to the question of security to be filed and fixed the matter for hearing on 5 August 2003. 3 On that day, the matter proceeded to hearing and her Honour heard oral argument for in excess of two hours, including approximately one hour's submissions from Mr Croker. Her Honour, after hearing the oral argument, gave leave for further written submissions to be filed and, on 12 August 2003, Mr Croker filed written submissions in further support of his position concerning security. The State filed written submissions in reply on 19 August 2003. On 8 September 2003, for reasons published on that day, Bennett J made orders that Mr Croker is to provide security for costs of the State of New South Wales in the sum of $5000 on or before 6 October 2003 and that, unless he provides that security in a form satisfactory to the Registrar, the proceedings be stayed until further order: see Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942. 4 On the same day, Mr Croker filed a notice of motion seeking an 'order setting aside the whole judgment of the Federal Court of Australia given on the 8 September 2003 at SYDNEY'. The notice of motion also sought an order for costs and 'an order the Court deems fit and proper'. Mr Croker also filed an affidavit purportedly in support of the notice of motion. That affidavit was also filed on 8 September 2003. The affidavit is in the form of submissions and assertions and contains very little evidence. I am prepared to treat it as a submission. 5 On the hearing of the motion today, Mr Croker tendered a number of documents, the relevance of which I shall explain briefly. One of the matters taken into account by Bennett J in concluding that it was appropriate to make the orders for the security sought by the State was that Mr Croker provides, as an address for service, the address of a post office. It appears that he intended to provide the address of Darlinghurst Post Office, although the address provided is not quite accurate so far as the address of that post office is concerned. 6 It appears from her Honour's reasons that Mr Croker submitted that he had used the address in question for correspondence and in litigation with several government agencies for some 14 years. Her Honour observed that there was no evidence to substantiate that assertion but that there was evidence that the address had been used in a proceeding in this Court involving a claim by Mr Croker against the Deputy Registrar of the High Court. There was, however, no evidence that the use of the address for service had not caused problems for the other parties in litigation with Mr Croker or that documents and correspondence served or sent there have in fact reached him. Indeed, in the proceeding before Bennett J, Mr Croker complained that he had not received a list of authorities filed on behalf of the State, although her Honour accepted that it had been left at the address in question. 7 Mr Croker said that the purpose of tendering the documents was to demonstrate that he has received correspondence addressed to that address and that he has filed application books in the High Court specifying that address. That is the only additional material relied upon by Mr Croker in support of his application that the orders made by Bennett J on 8 September 2003 be set aside. 8 There are public as well as private interests in bringing litigation to an end. There are several principles of law that recognise those interests, such as the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal, even an appeal by way of rehearing. 9 Of course, interlocutory orders create no res judicata or issue estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceeding. Nevertheless, the general rationale of the principles to which I have just referred apply, even in the case of interlocutory orders. It could be conducive to great injustice and an enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order re-litigated at will. 10 The overriding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. However, in giving effect to that general principle, and in recognition of the public and private interests to which I have referred, rules of practice have been developed, in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will not ordinarily be exercised. If fresh material has become available to an applicant, or if an interlocutory order made ex parte, these considerations, of course, would not preclude an application to vary or discharge an order. Further, if circumstances change, it may be appropriate to entertain an application to vary an interlocutory order. 11 However there has been no suggestion by Mr Croker that circumstances have changed. He asserted that the reason why the documents to which I have referred were not tendered, was that he did not expect the matter to be gone into in such detail. That assertion appears to me to be somewhat hollow, given the additional time that was allowed him to make written submissions. In any event, it appears that her Honour was apprised of the assertion that the address had been used from time to time. To tender the documents does not do anything more than establish that documents addressed to that address had been received by Mr Croker and that documents were filed in the High Court showing that address. That material does not make any difference to the question that was litigated before Bennett J. 12 Counsel for the State contended that the application was incompetent, having regard to the provisions of s 24(1AAA) of the Federal Court of Australia Act 1976 (Cth). Under that provision, an appeal may not be brought to the Court from a judgment of the Court constituted by a single judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court. Bennett J was exercising that jurisdiction, and it may well be that there is no right of appeal from the order that Mr Croker now seeks to have set aside. That may be the reason why the application that he makes is now made. 13 However, that is to say, since the order made by Bennett J is interlocutory, it may be that it can be varied, set aside or discharged even though made in the exercise of appellate jurisdiction. The only basis advanced for Mr Croker's desire to have the matter re-litigated is his assertion that the decision of Bennett J was erroneous. Her Honour considered all of the relevant material; there is no suggestion that the decision was given per incuriam, or that her Honour failed to take account of a relevant principle. 14 While her Honour was prepared to accept for the purposes of the hearing that Mr Croker may have a reasonably arguable claim, without drawing any conclusion as to that matter, her Honour considered that Mr Croker had not established that there are good prospects of success on his application for leave to appeal or in the appeal itself, if leave were granted. I do not consider that any basis has been established for the decision of Bennett J to be revisited. Her Honour's reasons appear to me to be without fault. It follows that the notice of motion should be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.