Soden v Croker [2019] FCA 359 | Case summary

LEE J: 1 It is an exercise in understatement to describe Mr Croker as an indefatigable litigant. He has the misfortune to be the subject of vexatious proceedings orders made in both the Supreme Court of New South Wales (Attorney General of New South Wales v Croker [2010] NSWSC 942 (Fullerton J)) and in this Court (Soden v Croker (No 2) [2016] FCA 15; (2016) 334 ALR 540 (Perry J)). 2 Apparently undaunted by persistent (although not entirely uniform) failure in his quixotic litigious endeavours, he now wishes to bring a proceeding for damages and the imposition of a pecuniary penalty against an art school, alleging discrimination on the basis of disability under the Disability Discrimination Act 1992 (Cth). For reasons which I will explain, there is no need to divagate and dwell on the details of the proposed claim. 3 Given the vexatious proceedings order made under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (Act), Mr Croker needs leave pursuant to s 37AR(2) of the Act for to institute the proposed proceeding. Section 37AR is in the following terms: 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 proceedings of a particular type, in the Court; or (b) acting in concert with another person who is subject to an order mentioned in paragraph (a). (2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order. (3) The applicant must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under this section; and (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and (c) discloses all relevant facts about 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 a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order. 4 Although the interlocutory application was unclear in its terms, I obtained clarification from Mr Croker that what was sought was a grant of leave pursuant to this section of the Act. This necessarily involved Mr Croker being required to comply with the requirements of making such an application. The central requirement is the filing of an affidavit addressing specific matters. As can be seen, the requirements of s 37AR(3) are expressed in mandatory terms. The reason is obvious and is demonstrated by s 37AS(1) of the Act, which provides that a judge may make an order dismissing an application for leave to institute a proceeding, if the judge considers the affidavit does not substantially comply with subsection 37AR(3). This dismissal may occur without an oral hearing (irrespective as to whether the applicant consents: see s 37AS(3)). Given the statutory scheme, it follows that there is a need to apprise the judge hearing the application of, among other things, the correct details of all the other proceedings the applicant has instituted in "any Australian court or tribunal", whenever those proceedings were commenced. 5 Needless to say, it makes sense that s 37AS(1) of the Act is couched in terms of "substantial compliance" given the very general nature of the further mandatory requirement to disclose all relevant facts about the application, whether supporting or adverse to the application: see s 37AR(3)(c). Additionally, it seems to me a relatively minor (and hence non-substantive) error in the listing of all proceedings may, depending upon all the circumstances, still amount to substantial compliance with the statutory requirements. 6 What has occurred here, however, is quite different. It is evident that Mr Croker has not even attempted to list all other proceedings he has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of s 37AR. The relevant affidavit lists 93 cases since 1999. However, as it turns out, as Perry J found in Soden v Croker (No 2) at 595-596 [223]: … (n)otwithstanding 33 proceedings which are not vexatious or relied upon as such, the fact remains that over the last 17 years, Mr Croker has commenced or conducted approximately 103 "proceedings" (in the sense defined in the Act) which were vexatious. In this regard, it will be recalled that proceedings for these purposes includes, for example, applications for leave to appeal or for an extension of time within which to appeal, such as in the second set of social security proceedings regarding the Disability Support Pension and Education Supplement (see at [115]-[119] above) and in relation to the subpoenas sought to be issued to the NSW Police and ATO in the Tenancy proceedings (see at [46] and [48] above). They also include the request by Mr Croker in these proceedings that the Registrar of the Federal Court obtain a copy of a Local Court file relating to criminal charges against a former practitioner who was the solicitor on the record in a number of the cases involving Mr Croker in evidence before me: Soden v Croker [2015] FCA 321. 7 It appears this finding was based on evidence relied upon by the Registrar in the proceeding before Perry J, referred to at 544 [5] of her Honour's judgment. 8 Section 37AT(2) of the Act provides that at the hearing of an application of the present type the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in which the applicant was a party. When this matter first came into my docket, it seemed to me likely that I should have regard to evidence supporting the finding of Perry J as to the correct number of previous proceedings (at least to the date of her Honour's judgment). I then listed the matter for an interlocutory hearing, in part, for the purpose of indicating to Mr Croker that I intended to have regard to a document which I then marked as Exhibit A on the application (which, for ease of reference, I will annex as a schedule to these reasons). 9 Exhibit A chronicles the full extent of Mr Croker's remarkable attraction to disputation in an array of courts and tribunals during the period to which it relates. The difference between the orgy of litigious activity referred to in Exhibit A and what was listed in the s 37AR(3) affidavit is evident. This is not to say that the list of 93 cases since 1999 in the affidavit does not, by itself, demonstrate excessive litigious zeal, but the fact is, the listing in Mr Croker's affidavit is inaccurate, and materially inaccurate as judged against what was required to be listed. 10 This is not some sort of "technical" point. It is not for the Court, dealing with an application for leave of this kind, to have to ferret around to obtain an accurate record from courts and tribunals. As Mortimer J observed in Gargan, in the matter of Gargan [2018] FCA 871 at [17]: The purpose of the requirement in s 37AR(3) is an important one. It is by this affidavit evidence that the Court is, at least in part, to assess whether the proposed proceeding for which leave is sought should be characterised as a vexatious proceeding. A failure by an applicant fully and frankly to disclose all previous proceedings, and to do so in a way which enables the Court to assess that history of litigation against the current application, adversely affects the Court's ability to carry out the task required under Div 3 of Pt VAAA of the [Act]. 11 I thought it appropriate to bring Exhibit A to the attention of Mr Croker and ask whether he agreed with its accuracy or indicated whether he disputed its contents. I also wished to obtain an explanation of how he approached the task of listing all relevant proceedings. Not unreasonably, he was not prepared to accept on the spot that the listing was accurate in all respects without time being afforded to allow him to study it in detail. Mr Croker's position was expressed as being that: "I would say confidently that it would be - majority of it - substantially correct" (at T6.41-42). Having said that, to have granted an adjournment and then received further submissions would have been inimical to the need to resolve applications of this type with celerity. Given the provenance of Exhibit A, there is no reason why I should not proceed on the basis that Exhibit A is accurate (as is the finding of Perry J extracted above). 12 Importantly, Mr Croker implicitly confirmed the list he provided must by definition be incomplete as he told me, in effect, that he approached the task by reference to a search of relevant court records on the internet, through the Austlii database. Such an approach is wholly inadequate. It delimits the cataloguing of cases to internet listings of unreported judgments (which are limited both temporally and as to the tribunals which publish reasons). Subsection 37AR(3) does more than merely requiring an applicant to use "best endeavours" to put relevant material before the Court on the application for leave. It requires the provision of accurate and materially complete information to allow the Court to discharge its duty to consider the application according to law without the benefit of further material or submissions. It is central to the way Part VAAA operates in relation to those against whom vexatious proceedings orders have been made. Insofar as the subsection requires objectively verifiable information to be listed, it should be done accurately. In my view, what has occurred falls considerably short of substantial compliance with the subsection. 13 Section 37AS(1) provides that an order dismissing an application under section 37AR may be made if the Court or a judge considers the affidavit does not substantially comply with subsection 37AR(3); subsection 37AS(2) provides that the Court or judge must make an order dismissing an application under section 37AR if the Court or judge "considers the proceeding is a vexatious proceeding". 14 What amounts to a "vexatious" proceeding was explained comprehensively by Charlesworth J in Garrett, in the matter of Company One [2016] FCA 703 at [8] to [20]. Although it might be said, on an impressionistic basis, that the proposed proceeding has apparent signs of being a new manifestation of at least some of the prior obsessions which formed part of the background to the vexatious proceedings order made against Mr Crocker, it is unnecessary for me to form a view on the s 37AS(2) question. This is because I consider, in the circumstances of this case, that the failure to comply with s 37AR(3) in a substantive sense is sufficiently important so as to be fatal to the grant of leave. The application for leave must 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 Lee.

Soden v Croker

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