Croker v Sydney Institute of TAFE

Federal Court of Australia|2003-09-08|Before: Bennett J

BACkGROUND 1 The applicant in the substantive proceedings and the respondent to this application, Mr Croker, makes certain allegations against the first respondent, Sydney Institute of TAFE (State of New South Wales) ('the Sydney Institute') which he alleges found a claim under the Disability Discrimination Act 1992 (Cth). 2 The Sydney Institute filed an application to dismiss the proceedings in the Federal Magistrates Court on 16 April 2003. The proceedings were summarily dismissed on 19 May 2003 by Raphael FM: [2003] FMCA 181. Mr Croker applies for leave to appeal from that decision. 3 Mr Croker filed the application for leave to appeal and a supporting affidavit (to which a draft notice of appeal was attached) in this Court on the day that Raphael FM gave his decision. 4 The Sydney Institute, by notice of motion, seeks orders that the applicant provide security for its costs in the sum of $5000 and that, unless such security is provided, the proceedings be stayed.

Statutory scheme 5 Section 56 of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act') provides: 'Security 56 (1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. (3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given. (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.' 6 Order 52 rule 20 of the Federal Court Rules provides: '20 Unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required.' 7 Order 28 makes some further provision in relation to security for costs. Order 28 rule 3 relevantly provides: 'Cases for security 3 (1) When considering an application by a respondent for an order for security for costs under section 56 of the Act, the Court may take into account the following matters: … (c) subject to subrule (2), that the address of the applicant is not stated or is incorrectly stated in the originating process; (d) that an applicant has changed address after the commencement of the proceeding in an attempt to avoid the consequences of the proceeding. (2) The Court shall not order an applicant to give security by reason only of paragraph (1) (c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive.' 8 Order 7 rule 6(1) provides: 'An address for service must be the address of a place within the District for the Registry in the proper place (other than the document exchange referred to in rule 7 of this Order) at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceeding may be posted for that person.'

Address for service 9 Mr Croker's stated address for service, provided in the application for leave to appeal, is 'Ground Floor, Suit [sic] 1, 1 Oxford Street, Darlinghurst, SYDNEY, New South Wales, 2000'. Evidence filed in support of the motion establishes that Suite 1, 1 Oxford Street is a Post Office, the Darlinghurst Post Office. However, 'Ground Floor, Suit [sic] 1, 1 Oxford Street, Darlinghurst, SYDNEY, New South Wales, 2000' is not the correct address of the Darlinghurst Post Office. The correct address of the Darlinghurst Post Office does not include 'SYDNEY' and the postcode is 2010. 10 The solicitor for Sydney Institute wrote to Mr Croker at his stated address for service, the actual address of the post office and at his email address and notified him that the address is incorrect and invited him to provide a proper address for service. There was no response to the corrospondence, nor a change in the address for service. 11 These facts do not seem to be in dispute. 12 The Federal Court Rules are clear that the requirement is that the address for service is a place where documents may be left. The context is that the address should be one at which documents may be delivered and reach Mr Croker. Mr Sivarajah, the solicitor with carriage of the matter for the Sydney Institute, went to the address given by Mr Croker and had a conversation with the attendant at the post office counter to the following effect: '"Do you know Mr Croker" She said words to the effect: "Yes I do. Mail is sent to the Post Office is held for him to come and pick up." I said words to the effect: "Is this service available for everyone?" She said words to the effect: "It is. But it is usually for travellers or persons without a fixed address" I then said words to the effect: "Will the mail sent to the Ground Floor, Suite 1 address reach the Post Office?" She said words to the effect: "If you are lucky. I won't send it to that address. For one, Darlinghurst and Sydney are two separate places. Also, the post code is incorrect."' 13 Beaumont and Beazley JJ (Drummond J concurring) considered the question of a proper address for service in Sunrise Auto Ltd v Deputy Commissioner of Taxation (1995) 133 ALR 274 ('Sunrise') at 281. Their Honours looked to the dictionary definitions of 'address' and 'service', reviewed a number of cases in which an address for service was considered in various contexts and concluded that, in its ordinary meaning, an address for service may be described 'as the place at which a person may be reached for the purpose of making formal delivery of a notice [of assessment]'. It need not be the place of residence but is intended to be 'the place "where a person may be found or communicated with"'. 14 Ms Ronalds, counsel for the Sydney Institute, points out that, even if documents could be left at the post office, the address is not a place where Mr Croker may be found or communicated with, as Mr Croker may not attend the post office and may not collect his mail. The first respondent is unable to effect personal service as there is no address given by Mr Croker that would enable this to happen. 15 Ms Ronalds relied on the decision of Black CJ in Sarikaya v Victorian Workcover (1997) 80 FCR 262 ('Sarikaya'). In that case, the address for service was a Melbourne post office box. 16 In considering Order 7 rule 6(1), Black CJ (at 263) observed that Order 7 rule 6(2) provides that the address for service for a person represented by a solicitor should be the office of the solicitor or his agent and that Order 7 rule 7 allows a person whose address for service is the office of a solicitor who uses the facilities of a document exchange to authorise service 'at' a document exchange box. Black CJ concluded that a post office box, being a container into which mail that has been duly posted is placed by the postal authorities for retrieval by or on behalf of the holder of the box, is not the address of a place at which a document may be 'left' by way of service. 17 In Croker v Ewen; Croker v Challoner [2000] NSWCA 186 ('Ewen'), Giles JA considered an address for service given by Mr Croker as 247 Crown Street, Darlinghurst which was, apparently, the Darlinghurst Post Office. Mr Croker had been directed by the Registrar to provide an address for service that complied with Part 9 rule 6 of the Supreme Court Rules. 18 Part 9 rule 6(1) of the Supreme Court Rules provides: 'Address for service 9.6 Address for service (1) Subject to subrules (1A), (8) and (9), an address for service shall be the address of a place in the State (other than a document exchange of Australian Document Exchange Pty Limited) at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceedings may be posted for that person. 19 It can be seen that Part 9 rule 6(1) of the Supreme Court Rules is, in effect, in the same terms as Order 7 rule 6(1) of the Federal Court Rules. Mr Croker made submissions in Ewen to the effect that the address was a 'poste restante' which Giles JA took to mean that documents posted to Mr Croker would be put aside for him at the post office and could be collected by him, a situation analogous to the evidence in Mr Sivarajah's affidavit set out above and, presumably, that adverted to by Mr Croker in his submissions that a post office box is different to 'postal restraint' (sic). In Ewen, as here, there was no evidence by Mr Croker that any actual arrangements had been made by him or, indeed, that there is a relevant distinction between a post office box and a 'poste restante'. Even assuming that documents posted to Mr Croker would be put aside for him at the post office and could be collected by him, Giles JA was of the view that the reasoning of Black CJ in Sarikaya applied. Accordingly, as Giles JA found, the use of the Darlinghurst Post Office address (297 Crown Street, Darlinghurst) did not comply with Part 9 rule 6 as an address for service at which documents could be left for a person. The address for service given by Mr Croker in these proceedings still purports to be the address of the Darlinghurst Post Office. 20 Kiefel J in William "Billy" Tait v Reynolds a Deputy District Registrar of the State of Queensland District Registry of the Federal Court of Australia [2003] FCA 619 considered whether the address 'c/- James Cook University Post Office, James Cook University, Townsville, Qld 4811' was a proper address for service. Her Honour followed Sarikaya and Ewen and held that, while the address was one to which documents could be posted, it was not an address at which documents could be left. Accordingly, the address did not satisfy the requirements for an address for service. 21 I also note that, in Quitstar Pty Ltd v Cooline Pacific Pty Ltd [2002] NSWSC 402, Barrett J followed Sarikaya and Ewen and held that a post office box address was not sufficient to constitute an address for service in a demand under s 459J of the Corporations Act 2001 (Cth). 22 I agree with the reasoning of Black CJ and its application in the cases referred to. The address given by Mr Croker as the address for service, even if it were the correct address of the Darlinghurst Post Office, does not comply with Order 7 rule 6. It is not an address at which documents may be left for Mr Croker. It is not an address where he may be found or communicated with and there is no evidence to suggest otherwise. 23 After Ewen, Mr Croker was aware that the address of a post office was not a proper address for service. He was also aware that the Sydney Institute was seeking security for costs under Order 28 rule 3. Ms Ronalds suggests that his failure to change his address for service gives rise to a clear inference that Mr Croker seeks to conceal the fact that the address is that of a post office and that he seeks to avoid the consequences of the number of unpaid costs orders already awarded against him. There is evidence of these unpaid costs. As Mr Croker has apparently used this address in previous litigation and has not adopted it solely for the purposes of these proceedings, I am not prepared to draw these inferences. Accordingly, by reason of Order 28 rule 3(2), the fact that the address for service is incorrectly stated is not of itself sufficient reason to order Mr Croker to give security. It is the case, however, that the address for service is mis-stated in the originating process and that Mr Croker has not sought to amend it to provide the correct address. 24 Mr Croker relies upon Order 7 rule 2, which provides that the Court or a Judge may make a direction as to an address for service. Mr Croker submits that he has used the present address for correspondence and in litigation 'with several government agencies' for some 14 years and that I should conclude that he may be reached at the given address. There is no evidence to substantiate this assertion. There is evidence that this address was used in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 but in Ewen a different address of, apparently, the Darlinghurst Post Office was used. There is, however, no evidence that the use of the address for service has not caused problems for the other parties in litigation with Mr Croker or that documents and correspondence so served or sent have in fact reached him. Further, the address is not correct and documents sent to that address will not necessarily reach the Darlinghurst Post Office. Indeed, in the present case, Mr Croker complained that he had not received Sydney Institute's list of authorities which, I was informed, had been left at the address for service as given. 25 In view of the above and the fact that Mr Croker has, despite a successful challenge to his use of a post office as his address for service, persisted in using it, let alone an incorrect address for that post office, I am not prepared to direct that the present address for service complies with Order 7 rule 6(1) or that service may be effected at the address provided under Order 7 rule 2.

general considerations 26 In Chapman v Luminis Pty Ltd [2002] FCA 496 at [12], Tamberlin J considered s 56 of the Federal Court Act, together with Order 28 and Order 52 rule 20 of the Federal Court Rules and concluded that the discretion of the Court under s 56 is broad and unfettered and not delimited by Order 28 rule 3, although it must be exercised judicially. He also referred, at [13], to the six specific matters identified in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 as relevant for consideration in deciding whether security for costs ought to be awarded. They are: · 'The prospects of success; · The quantum of risk that a costs order will not be satisfied; · Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; · Whether any impecuniosity of the appellants arises out of the conduct complained of; · Whether there are aspects of public interest which weigh in the balance against such an order; · Whether there are any particular discretionary matters peculiar to the circumstances of the case.' Prospects of success 27 In considering Mr Croker's case against the first respondent, Raphael FM said: '14. It seems to me that Mr Croker has failed to define his disability with any precision. He asserts that he continues to suffer from repetitive strain injury and some tinnitus but there is no medical evidence of that. There is no evidence of how his medical conditions constituted disability within the meaning of the Act nor how they impinge upon his ability to study. There is no evidence of any action taken by the first respondent which arose out of the existence of his disability nor is there evidence of any prejudicial or discriminatory conduct on the part of the first respondent against Mr Croker. The case which Mr Croker argued before the court was that TAFE failed to take appropriate steps to provide him within sufficient support that would allow him to have passed those courses which he failed. In making this assertion Mr Croker reveals the depth of his misunderstanding of the purpose and effect of the Disability Discrimination Act. The Act exists to discourage direct or indirect discrimination on the grounds of disability. It is not an act requiring positive discrimination in favour of persons with disabilities. As it is not clear what assistance Mr Croker believes he was entitled to it is difficult to test whether or not the alleged failure to provide it constitutes "less favourable" treatment. It is even more difficult to consider whether or not Mr Croker is being required to comply with a requirement or a condition to which a substantially higher proportion of persons without his disabilities comply or are able to comply and which is not reasonable having regard to all the circumstances of the case. 15. What the evidence does reveal is that in 1995 Mr Croker's complaint was dismissed on the grounds that he had not provided TAFE with any information relating to his disability. HREOC came to the view that TAFE was entitled to obtain this information before it decided what assistance it might be able to give him. The evidence from the documentation is that Mr Croker has not provided any further information to TAFE since that time. 16. All in all, the claims as articulated by Mr Croker are clearly without merit.' 28 I note that the Federal Magistrate has expressed a forceful view as to the merits and prospects of success of Mr Croker's claim. Mr Croker has not made any submissions to me on his prospects of success or the basis of his appeal, other than to point to his affidavit and draft notice of appeal. 29 The draft notice of appeal does not assist in determining Mr Croker's prospects of success. The grounds are as follows: '2. (i) the learned Federal Magistrate erred in law in that the application did disclose causes of action and that the respondent's are in violation of the Disability Discrimination Act 1992 (Cth). (ii) the learn [sic] Federal Magistrate erred in law in not allowing the course of natural justice to be followed. (iii) the appellant is aggrieved.' 30 No basis for any alleged breach of procedural fairness is set out and Mr Croker does not point to any part of the decision appealed from to support this ground. The affidavit sworn by him and filed on 19 May 2003 does not assist. It asserts 'the learned Federal Magistrate erred in law in that the application did disclose causes of action and that the respondent's [sic] are in violation of the Disability Discrimination Act 1992 (Cth)'. In submissions before me, Mr Croker said that there was evidence before the Raphael FM which was not acknowledged and that the judgment was misleading and hard to follow. He did not specify the nature of such evidence or his complaints on the form of the judgment. He seemed to concede that nothing in the documents filed to date showed prospects of success on the appeal and that the documents do not define the errors of law. He said that he would file further evidence, at some later date and that there would be an expansion on the notice of appeal and affidavit. He said that the prospects of success should be determined by a Full Court but consented to my hearing of this notice of motion. Mr Croker did not seek any adjournment in order to adduce such evidence or submissions and I must proceed on the material before me. 31 Federal Magistrate Raphael pointed to the lack of evidence in the matter before him and to the distinction between acts of direct or indirect discrimination on the grounds of disability and acts requiring positive discrimination in favour of a person with disabilities. Mr Croker has not made any submissions, other than of the most general kind, as to why the decision appealed from is incorrect or as to any denial of natural justice. 32 He has not established that there are good prospects of success on the application for leave to appeal or in the appeal itself. The quantum of risk that a costs order will not be satisfied 33 The Sydney Institute has adduced evidence in respect of numerous costs orders in a number of different proceedings in a number of different Courts over a number of years in which Mr Croker has been ordered to pay the costs of the other party or parties. In no case has Mr Croker paid any part of those costs. 34 Mr Croker made a submission that, on 'equitable grounds', he should not be ordered to pay any costs of a successful party in any litigation in which he was unsuccessful and the other party successful. He said that, as the Court waives its fees and gives the applicant a right to be heard, there should be no burden on any impecunious applicant for any further costs, even if such an applicant is unsuccessful and that this applies at first instance and to any appeal brought by that applicant, whatever the outcome. He said words to the effect that the other party 'should simply accept the fact that they can't recover costs'. Mr Croker further submitted that, as he appeared in person and had his Court fees waived, he did not have any recoverable costs if he were successful so that, accordingly, the respondent should not be awarded costs if it were successful. 35 I reject Mr Croker's submissions. The fact that he put those submissions, together with the history of unpaid costs in litigation in which he has been an unsuccessful party and his impecuniosity, leads me to conclude that there is no real prospect that a costs order against him in these proceedings would be satisfied. Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim 36 If it is accepted that Mr Croker would not be able to provide security, which seems to be the case, the making of the orders sought would prevent him from proceeding. On the basis of the material before me, I draw no conclusion as to whether or not Mr Croker's claim is reasonably arguable. For the purposes of this aspect of the consideration about security for costs, I am prepared to accept that he has a reasonably arguable claim. Whether the impecuniosity of the appellant arises out of the conduct complained of 37 Mr Croker did not address me specifically on this point. He does, however, assert his impecuniosity and points to the fact that he has relied upon this to seek waiver of Court fees in his history of litigation. This would suggest that his financial state does not arise out of the conduct complained of and the facts, as set out in the decision appealed from, does not suggest the contrary. Mr Croker did not suggest that the first respondent's conduct was the cause of his impecuniosity. Indeed, as Raphael FM records at [13], he has been in receipt of a disability support pension continuously since 24 March 1994. 38 In Croker v Deputy Registrar of the High Court of Australia at [7] Madgwick J said: 'There is no doubt that Mr Croker is impecunious and there is a substantial likelihood that the second respondent in the principal proceeding, the applicant here, could not recover his costs of the appeal from Mr Croker. Further, the evidence shows that whatever the effect Dr Challoner's dental treatment may have had on Mr Croker, and in respect of which Mr Croker has used Dr Challoner, Mr Croker was already impecunious, so that the impecuniosity does not arise from the conduct of the party about which the appellant makes complaint.' 39 Similarly, his current financial status does not arise from any claim he may consider he has against the first respondent. Whether there are aspects of public interest which weigh in the balance against such an order 40 None were advanced. Ms Ronalds asserts that there are no matters of public interest which arise in relation to the discrimination proceedings, as the subject of the proceedings is an individual claim against the first respondent and has no wider implications. She did submit that there is a public interest in the Court ensuring that its orders are met. Mr Croker did not dispute this. Whether there are any particular discretionary matters peculiar to the circumstances of the case Litigation history 41 Mr Croker has an extensive litigation history with what Ms Ronalds describes as 'a litany of costs orders made both by the High Court, this Court and by the NSW Court of Appeal which continue to be unpaid'. As she points out, this also constitutes a failure to comply with orders of this Court and of other Courts. The amount of outstanding costs which have been ordered by the High Court and the Federal Court in relation to one series of litigation, which remain unpaid, are in excess of $40,000. Mr Croker does not seem to have the financial means to meet any adverse costs order or, apparently, the inclination to do so. Quantum of security sought 42 The Sydney Institute seeks security in the amount of $5000. The affidavit of Mr Sivarajah sets out the foundation for the quantum of the claim which the Sydney Institute submits is 'relatively modest'. Mr Sivarajah estimates that it will cost the Sydney Institute approximately $5,000 to defend this application for leave to appeal, which includes Counsel's fees for one day preparation and one day hearing as well as appearances at interlocutory hearings. Mr Croker submits that the amount is 'extravagant' but provides no evidence or calculation to support that submission. I am satisfied that the amount sought is reasonable. Address for service 43 By reason of Order 28 rule 3(1)(c), the Court may, as a separate matter, order an applicant to give security for costs where an address is not stated or incorrectly stated in the originating process. The fact that there is no address for service that complies with Order 7 rule 6(1) and the fact that the address for service is incorrectly stated are relevant factors to take into account in the borader considerations when determining a security for costs application. CONCLUSION 44 The factors in favour of ordering security for costs are:

· Mr Croker has not provided an address for service that complies with Order 7 rule 6(1).

· The address for service provided is incorrectly stated.

· Mr Croker has not established that there are good prospects of success on the application for leave to appeal or in the appeal itself.

· There is no real prospect that a costs order against Mr Croker in these proceedings would be satisfied.

· Mr Croker's impecuniosity does not arise from any claim he may consider he has against the first respondent.

· Mr Croker has an extensive litigation history and a number of outstanding costs orders already made against him.

· Mr Croker has a history of non-compliance with orders for costs of the Court and of other Courts.

· The quantum of security for costs sought is a reasonable sum in the circumstances. The factors against such an order:

· For the purposes of this aspect of the consideration about security for costs, I am prepared to accept that Mr Croker has a reasonably arguable claim.

· It is likely that making of the orders sought would prevent Mr Croker from proceeding with the application for leave to appeal. 45 I have taken the above factors into account, including the fact that, if I make the orders sought by the Sydney Institute, it is unlikely that Mr Croker will be able to provide security in the amount sought and continue the appeal. I am also mindful of the statement of Hood J in Bethune v Porteous (1892) 18 VLR 493 at 494 cited with approval by Spender J in Dranichnikov v Centrelink [2002] FCA 1622 at [9]: 'In my opinion the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful. No general rule can be laid down, as each case has to depend upon its own 'special circumstances,' but the foregoing principle has been frequently recognised as applying to appeals. The respondent has obtained a judgment and has acquired what has been called a vested right; having fought his opponent once and defeated him, he ought not to be further vexed by being dragged from court to court to again litigate the same matter with an adversary who cannot compensate him for the extra costs incurred by so doing.' 46 In my opinion, it is appropriate in this case to make the orders sought. Further, in the circumstances of this case, there would be injustice to the first respondent if it were required to contest the issues as to which it was successful for a second time without the probability of obtaining its costs in the event that it was successful again. ORDERS 47 The Courts orders that: 1. The applicant is to provide security for costs of the first respondent in the sum of $5000 on or before 6 October 2003. 2. Unless the applicant provides the security in order 1 in a form satisfactory to the Registrar, the proceedings are to be stayed until further order. 3. The applicant is to pay the first respondent's costs of this application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 8 September 2003 Applicant appeared in person

Solicitor for the First Respondent: Crown Solicitor (New South Wales)

Date of Judgment: 8 September 2003

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (9)

Cited By (16)