FEDERAL COURT OF AUSTRALIA Croker v Commonwealth of Australia [2011] FCA 312 Citation: Croker v Commonwealth of Australia [2011] FCA 312 Parties: CLAYTON ROBERT CROKER v COMMONWEALTH OF AUSTRALIA File numbers: NSD 1276 of 2010 NSD 1581 of 2010 Judge: FLICK J Date of judgment: 1 April 2011 Catchwords: PRACTICE AND PROCEDURE – application for stay of Full Court decision pending application for special leave – power of single Judge – stay refused – no prospects of success Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2)(d) Cases cited: Commissioner of Taxation v Australian National Hotels Ltd (1989) 63 ALJR 344, cited Commonwealth of Australia v Croker [2010] FMCA 852, cited Croker v Commonwealth of Australia [2010] FCA 1031, cited Croker v Commonwealth of Australia [2011] FCAFC 25, cited Edelsten v Ward (No 2) (1988) 63 ALJR 346, referred to Employment Services Australia Pty Ltd v Poniatowska [2010] FCA 1043, cited George v Fletcher (No 2) [2010] FCA 655, cited Guss v Johnstone [2000] FCA 1455, cited Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, considered Minister for Immigration and Citizenship v Manaf (No 2) [2009] FCA 993, cited New Zealand v Moloney [2006] FCA 1363, cited Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618, referred to SZKUO v Minister for Immigration and Citizenship [2009] FCA 1570, cited Wainter Pty Ltd; In the matter of New Tel Ltd [2005] FCA 1224, 54 ACSR 554, cited Westpac Banking Corporation v Tsatsoulis [2003] FCA 406, cited Daley, J. "Interlocutory Orders Pending High Court Litigation" (1995) 13 Australian Bar Review 41 Date of hearing: 1 April 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr Markus (AGS) IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1276 of 2010 BETWEEN: CLAYTON ROBERT CROKER Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent JUDGE: FLICK J DATE OF ORDER: 1 APRIL 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion as filed on 24 March 2011 is dismissed. 2. The Applicant is to pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1581 of 2010 BETWEEN: CLAYTON ROBERT CROKER Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent JUDGE: FLICK J DATE OF ORDER: 1 APRIL 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion as filed on 24 March 2011 is dismissed. 2. The Applicant is to pay the costs of the Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1276 of 2010 NSD 1581 of 2010 BETWEEN: CLAYTON ROBERT CROKER Applicant AND: COMMONWEALTH OF AUSTRALIA Respondent JUDGE: FLICK J DATE: 1 APRIL 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 28 February 2011 a Full Court of this Court dismissed two appeals which had been filed by the present Applicant: Croker v Commonwealth of Australia [2011] FCAFC 25. 2 One was an appeal from a decision of a single Judge (Foster J) who dismissed an application to set aside a bankruptcy notice: Croker v Commonwealth of Australia [2010] FCA 1031. The other appeal was from a decision of a Federal Magistrate who had made a sequestration order against the estate of Mr Croker: Commonwealth of Australia v Croker [2010] FMCA 852. In respect to the latter appeal, an order had been made by Emmett J that that appeal was to be heard by the same Full Court as heard the appeal from Foster J. 3 In its reasons for decision, the Full Court gave reasons for dismissing each of the "four broad contentions" relied upon by Mr Croker when challenging the decision of Foster J. Reasons were also given for dismissing the appeal from the decision of the Federal Magistrate. 4 On 23 March 2011 an Application for Special Leave to Appeal was filed at the Sydney Registry of the High Court of Australia. The Application states as follows (without alteration) the "Grounds" relied upon: 2. (i.) That the judgment of the Court below failed to adhere to common law and statutory law in not granting relief and not following practice and procedure as statute law directs in its intended interpretations; (ii.) The judgment below instils a gross miscarriage of justice on the Applicant and the citizens of the Commonwealth of Australia; (iii) That the judgment of the court below is one that gave no consideration to and is inconsistence and repugnant to the doctrines of natural justice, natural law and the rule of law; (iv.) The pertinent concerns the valitivity of the Trade Practices Act 1974 (Cth) Part V, Division 1 sections 52 and 53 (as of 1/1/2011 the Competition and Consumer Act 2010 (Cth)); (v.) There is a 'live' constitutional issue which includes constitutional sovereignty and a private interest which is now both one of a public interest and private interest; (vi) The amicus curiae of at least one Attorney General; and (vii.) The judgment of the Court below contravenes the intention and interpretation of the Commonwealth of Australia Constitution Act 1900 (Imp). Chapter I, PART V, section 51, subsections (xvii.) bankruptcy and insolvency; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; and (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States. Although considerable difficulty may ultimately be experienced in construing these "Grounds", it is sufficient for present purposes to note that they do not all appear to be the same "Grounds" as have previously been relied upon. But perhaps they may ultimately emerge as but a different way of expressing "Grounds" previously resolved. Before the Full Court, for example, Mr Croker sought to rely upon a "constitutional issue" but that Court had "great difficulty in understanding the notice of a constitutional issue which ha[d] been filed". That difficulty remains. The last "Ground" sought to be raised before the High Court alleging a contravention of "the intention and interpretation" of the Constitution fails (with respect) to throw any enlightenment on the argument sought to be advanced and may well trespass beyond arguments advanced before the Full Court. 5 Now before this Court as a Duty Judge matter is a Notice of Motion filed on 24 March 2011 seeking an order "Pursuant to Order 52 rule 17(1) of the Federal Court Rules, the time for compliance by the Applicant with the requirements of the Bankruptcy Notice be extended up to and including the determination of the appeal to the High Court of Australia". The Respondent neither consents to nor opposes the relief sought by Mr Croker. What is essentially sought is a "stay" of the sequestration order. Given the importance of the relief sought, it is appropriate for the Motion to be heard immediately. 6 Although the Notice of Motion has been filed in only one proceeding, it has been assumed that it applies to each of the two proceedings that were before the Full Court. Reliance upon Order 52 r 17, however, may well be misplaced. That rule applies to appeals to the Full Court and not to appeals from a decision of a Full Court pending an application for special leave to appeal to the High Court. 7 But the power of this Court to grant the relief as now sought by Mr Croker, or in some other form preserving his position pending the resolution of his application for special leave, may presently be assumed: cf. Guss v Johnstone [2000] FCA 1455 at [8] per Sackville J, (Drummond and Dowsett JJ agreeing). A sufficient source of the power may potentially be found in s 25(2)(d) of the Federal Court of Australia Act 1976 (Cth). There may also be what has been loosely referred to as an "inherent jurisdiction" of this Court: J Daley, "Interlocutory Orders Pending High Court Litigation" (1995) 13 Australian Bar Review 41 at 46. 8 But whatever may be the source of the power, it is well recognised that an application of the present kind pending an application for special leave to appeal may be made – and is most appropriately made – to this Court and not the High Court: cf. Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681. Brennan J (as His Honour then was) there held at 684 to 685: A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this Court adverted in Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth (No. 3) (1913) 16 CLR 384. There the Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. What the Court said in that case [at p.386] is applicable to this case: "The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants' appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience." A stay order was then made on terms. When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that Court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court. In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider – first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies. In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J again referred to the jurisdiction as an "exceptional jurisdiction". Section 25(2) has been invoked by other Judges of this Court sitting alone when considering an application to grant a stay of a decision of a Full Court and the principles espoused by Brennan J have there been applied: eg, Wainter Pty Ltd; In the matter of New Tel Ltd [2005] FCA 1224, 54 ACSR 554. See also: Minister for Immigration and Citizenship v Manaf (No 2) [2009] FCA 993; SZKUO v Minister for Immigration and Citizenship [2009] FCA 1570; Employment Services Australia Pty Ltd v Poniatowska [2010] FCA 1043. Sometimes the application for a stay is heard before one of the Judges who constituted the Full Court whose decision is under challenge: eg, George v Fletcher (No 2) [2010] FCA 655. But it need not be. It should, in any event, be noted that the Judge who presided in the present Full Court decision (Siopis J) has expressed his concurrence with the present Notice of Motion being heard and resolved by a single Judge and as a "duty matter". It is also independently considered that there is no reason warranting the Motion being heard by one or other of the Judges who constituted that Full Court. This is not a case in which the "familiarity" which one or other of those Judges may have in respect to the litigation better equips them to consider the application presently being made. 9 Even though it may be accepted that the making of a sequestration order against the estate of a bankrupt is a serious step, the relief as now sought by Mr Croker is to be refused. 10 The primary reason for refusing to grant the relief as sought (or some other form of relief) is an assessment that the application for special leave to appeal has little (if any) prospects of success. If attention is confined to the issues resolved by the Full Court and the reasons given by that Court, there is respectfully considered to be very little room for any argument that the Full Court erred in any respect. There is even less room for concluding that Mr Croker will be able to make out any of the criteria prescribed by s 35A of the Judiciary Act 1903 (Cth) as "criteria for granting special leave to appeal". If the proposed "Grounds" are to be construed as going beyond the issues resolved by the Full Court, Mr Croker may well experience further difficulty in relying upon those "Grounds" as a basis upon which special leave may be sought: Commissioner of Taxation v Australian National Hotels Ltd (1989) 63 ALJR 344. 11 A submission repeatedly advanced this morning by Mr Croker was that there had been a failure "to hear" his case. The submission is, with respect, without substance. The arguments he has sought to advance in seeking to have the bankruptcy notice set aside and in opposition to the making of a sequestration order have all been heard and determined. There has been no failure "to hear" any of his arguments. Since the hearing before the Full Court, however, Mr Croker now seeks to emphasise that there has been at least an acknowledgment of a request being made upon the Commonwealth of Australia for an act of grace payment. But whether such a payment will be made and the amount of any such payment remains a matter of speculation. And, in any event, the prospect of an act of grace payment was apparently raised before Foster J and considered by His Honour. Events since the hearing of the Full Court, it is concluded, take the matter no further. 12 A refusal of the relief sought by Mr Croker, it is further concluded, works no real injustice to him and the balance of convenience favours a refusal. As pointed out by the Full Court, there was a substantial overlap of the issues sought to be resolved by the Federal Magistrate and by Foster J. Mr Croker has had the benefit of access to the Federal Magistrates Court and to this Court and has had each of his claims resolved. Each of the issues which have been advanced by him have been carefully considered and resolved adversely to him in a joint judgment by three Judges of this Court. There is no injustice in a party being bound by a decision which is clearly correct. There is no reason why the Respondent should be further denied the benefit of the judgments in its favour: New Zealand v Moloney [2006] FCA 1363 at [3] per Branson J. Except in "exceptional circumstances", a decision of the Full Court of this Court is "conclusive": Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 at 620 per Deane J. There are no reasons why the decision of the Full Court should not be regarded as "conclusive" in the present proceedings. 13 The authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally: Westpac Banking Corporation v Tsatsoulis [2003] FCA 406 at [15] per Branson J. Subject to any further consideration that may be given to Mr Croker's claims by the High Court, it is respectfully considered that the time has come for there to be finality to the present litigation. 14 The debts which founded the bankruptcy notice were orders for the payment of costs awarded against Mr Croker in a series of litigation arising out of his purchase for $50 in 2003 of commemorative cuff links marking the centenary celebration of the High Court. The tragedy of why a $50 purchase of cuff links has been the occasion for such protracted and expensive litigation – and which may ironically only be ultimately resolved in the High Court itself – is only a question which Mr Croker can satisfactorily explain. 15 There is no reason why the normal rule as to costs should not apply, namely that costs should follow the event. The Motion is to be dismissed and Mr Croker is to pay the costs of the Respondent. ORDERS 16 The Orders of the Court are: In NSD 1276 of 2010: 1. The Notice of Motion as filed on 24 March 2011 is dismissed. 2. The Applicant is to pay the costs of the Respondent. In NSD 1581 of 2010: 1. The Notice of Motion as filed on 24 March 2011 is dismissed. 2. The Applicant is to pay the costs of the Respondent. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 6 April 2011