FEDERAL COURT OF AUSTRALIA Croker v Minister for Finance and Deregulation [2013] FCA 429 Citation: Croker v Minister for the Department of Finance and Deregulation [2013] FCA 429 Parties: CLAYTON ROBERT CROKER v MINISTER FOR FINANCE AND DEREGULATION File number: NSD 252 of 2013 Judge: COWDROY J Date of judgment: 10 May 2013 Catchwords: EVIDENCE – burden of proof – failure to discharge burden of proof PUBLIC SERVICE – application for prerogative relief pursuant to s 33 of the Financial Management and Accountability Act 1997 (Cth) – necessity for claim to be provided to Department of Finance and Deregulation Legislation: Financial Management and Accountability Act 1997 (Cth), s 33 Judiciary Act 1903, ss 33, 55ZF, 55ZG Legal Services Directions 2005 (Cth) Cases cited: Croker v Commonwealth of Australia [2011] FCAFC 25 Croker v Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1136 Date of hearing: 6 May 2013 Date of last submissions: 2 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 252 of 2013 BETWEEN: CLAYTON ROBERT CROKER Applicant AND: MINISTER FOR FINANCE AND DEREGULATION Respondent JUDGE: COWDROY J DATE OF ORDER: 10 MAY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no orders as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 252 of 2013 BETWEEN: CLAYTON ROBERT CROKER Applicant AND: MINISTER FOR FINANCE AND DEREGULATION Respondent JUDGE: COWDROY J DATE: 10 MAY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By originating application, the applicant ('Mr Croker') seeks the following orders: 1. An order by the Court compelling the Respondent to make decisions to pay compensation for detriment caused by defective administration (CDDA) claims / act of grace payments / ex gratia payments by the Applicant against Commonwealth agencies pursuant to the Financial Management and Accountability Act 1997 (Cth) – Sect 33 and in particular those claims against the Commonwealth agencies of the Commissioner for Taxation of the Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations; 1A. An order pursuant to s.39B of the Judiciary Act 1903 (Cth); 2. An order for costs; and 3. Such other orders the Court deems fit. 2 Mr Croker has sworn two affidavits in support of his application. Mr Croker deposes that he has previously made claims under s 33 of the Financial Management and Accountability Act 1997 (Cth) ('the Act'). Section 33 of the Act empowers the Finance Minister to authorise the making of an ex gratia payment in certain circumstances. Such section relevantly states: (1) If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): (a) one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation); (b) periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation). BACKGROUND 3 Mr Croker claims that at approximately 1.30 pm on 21 October 2011 he delivered a letter by hand to a man who identified himself as David Hill at the Department of Finance and Deregulation ('the Department'), John Gorton Building, King Edward Terrace, Parkes, Australian Capital Territory. Mr Croker states that such letter requested compensation for alleged detriment caused by defective administration in respect of an ex gratia payment to which he claims to be entitled ('the s 33 claim') arising out of proceedings in Croker v Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1136. Mr Croker claims that Mr Hill, when receiving the letter from Mr Croker, said 'I will get started on it right away'. 4 Mr Croker states that on 12 November 2012 he sent a further letter by mail to the respondent requesting a decision to be made in respect of his claim. Such request was also sent by email on 17 November 2012 to the respondent. 5 By letter dated 19 December 2012 an officer of the Department responded to Mr Croker, stating as follows: Thank you for your letter of 12 November 2012 and email of 17 November 2012. I am responding to your letter as this department has not had an officer named Mr David Hill (the addressee) for at least two years. In your letter of 12 November you refer to a claim for compensation that you state was hand delivered to this department late last year. We have since conducted a search of the relevant areas of the department. We do not have a record of this correspondence nor any current claims in your name under management. In regards to your comments regarding previous matters, our files indicate that there are no outstanding issues in regards to those claims. 6 Accordingly Mr Croker has instituted these proceedings claiming the relief set out above. By virtue of order 1, Mr Croker seeks an order in the nature of a writ of mandamus requiring the Minister for Finance and Deregulation ('the Minister') to make a decision on the s 33 claim. The reference to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act') in order 1A does no more then assert the Court's jurisdiction with respect to any matter in which a writ of mandamus is sought against an officer of the Commonwealth. 7 It appears from Mr Croker's affidavit sworn 19 February 2013 that he has been engaged in considerable litigation with various Commonwealth departments. A schedule to his affidavit lists 11 cases which he has instituted against them. He is currently an undischarged bankrupt. The respondent takes no issue relating to the competency of the proceedings because of Mr Croker's bankruptcy given the nature of the relief claimed. SUBMISSIONS 8 Mr Croker submits that the question raised by his application requires the Court to consider the actions which departments and agencies of the Commonwealth are required to take when claims are received. He asserts that the Minister to failed to deal with his claim in accordance with the model litigant provisions of the Legal Services Directions 2005 (Cth) ('the Legal Services Directions'). Mr Croker submits that the time which has elapsed since he made his claim is excessive and for this reason he seeks relief set out in his originating application. 9 The Minister's contention that the proceeding should be dismissed relies upon the fact that unless and until a request is made under the Act for an ex gratia payment, no occasion arises for the Minister to consider authorising an ex-gratia payment. That is, the Court must be satisfied that a request has been made in order to activate the provisions of s 33(1) of the Act. The Minister submits that no such request has been made. 10 In response to the assertions of Mr Croker that he delivered a letter to the Department and provided it to Mr Hill, the Minister refers to the letter of the Department dated 19 December 2012, as attached to Mr Croker's affidavit in support of his application. Further, the Minister relies upon a Statement of Non-Service provided by the director of the Department dated 30 April 2013 which relevantly states: The Department of Finance and Deregulation has no record of David Hill being an employee of the Department on 21 October 2011. A search of the Department of Finance and Deregulation's electronic systems was undertaken on 29th April 2013 and no record of David Hill being an employee or contractor of the Department at any time since 1998 has been found. CONSIDERATION 11 The Court will consider both the s 33 claim, and the alleged non-compliance by the Minister with the provisions of the Legal Services Directions. The s 33 claim 12 While s 33(1) of the Act does not expressly state that a request must be made in order to invoke the operation of s 33, it seems plain that unless and until a claim is made upon the Department, the Minister would not be in a position to consider whether any payment under s 33(1) could or should be made. Certainly, there could be no suggestion that any defective administration by the Minister or her department in the processing of an act of grace payment in the absence of a request. This is because the provisions of s 33(1) would simply not be activated, save for any circumstance in which the Minister considers it desirable to make a payment under the section. 13 Although the Court has been informed of the numerous proceedings in which Mr Croker has been previously involved, they are not of direct relevance to whether Mr Croker is entitled to the relief he seeks in this proceeding. 14 Mr Croker bears the onus of establishing that he has made his request, however he was unable to produce a hard or soft copy of the letter dated 21 October 2011. He has also refused to make a separate, subsequent request on the same terms to the Minister. In view of the evidence placed before the Court by both parties, the Court is not satisfied that Mr Croker has discharged the burden of proof; that is, the Court is not satisfied that a request has been received by the Minister for an ex gratia payment. 15 Whilst there is no need to consider the alleged non-compliance by the Minister with the provisions of the Legal Services Directions, the Court will do so for completeness. Alleged non-compliance with the Legal Services Directions 16 The Legal Services Directions are made pursuant to s 55ZF(1) of the Judiciary Act. Such section states: (1) The Attorney-General may issue directions (Legal Services Directions): (a) that are to apply generally to Commonwealth legal work; or (b) that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. 17 The phrase 'Commonwealth legal work' includes any legal work performed by a person for the Commonwealth: s 55ZF(3)(b)(i). 18 Whether the conduct of the Minister pursuant to s 33 of the Act falls within the purview of the Legal Services Directions need not be considered. It is sufficient to note that Mr Croker has no standing to allege any breach of the Legal Services Directions for two reasons: 1. Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General: s 55ZG(2) of the Judiciary Act. 2. The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth: s 55ZG(3) of the Judiciary Act. 19 Mr Croker was on notice prior to the commencement of this proceeding that any attempt to raise an issue of non-compliance with the Legal Services Directions would fail. Mr Croker was the appellant in the Full Court proceeding of Croker v Commonwealth of Australia [2011] FCAFC 25, in which Siopis, Tracey and Gilmour JJ said of the decision of the court below at [19]: It was not necessary for his Honour to explore this issue [of non-compliance with the Legal Services Directions] further because compliance with the directions was not enforceable by Mr Croker and could not be raised in any proceeding other than by or on behalf of the Commonwealth: see s 55ZG of the Judiciary Act. 20 For the reasons above the Court dismisses the application. It is unfortunate that these proceedings have been brought to Court in circumstances where, Mr Croker being aware that his application would be opposed for the reasons that David Hill was never an employee, and that the very foundation of his claim was in issue, he did not simply provide the Department with a separate request. Had he done so, this litigation may have been avoided. 21 No costs are sought by the Minister. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 10 May 2013