FEDERAL COURT OF AUSTRALIA Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588 Citation: Crocker v Toys 'R' Us (Australia) Pty Ltd [2015] FCA 588 Parties: DEBRA ANN CROCKER v TOYS 'R' US (AUSTRALIA) PTY LTD, BABY ZONE (AUST) PTY LTD and THE BABY PROJECT LIMITED PARTNERSHIP LP File number: QUD 647 of 2014 Judge: REEVES J Date of judgment: 11 June 2015 Date of hearing: 11 June 2015 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 47 Counsel for the Applicant: Ms Crocker appeared in person Counsel for the Proposed Respondents: Mr A Musgrave Solicitor for the Proposed Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 647 of 2014 BETWEEN: DEBRA ANN CROCKER Applicant AND: TOYS 'R' US (AUSTRALIA) PTY LTD Second Respondent BABY ZONE (AUST) PTY LTD Third Respondent THE BABY PROJECT LIMITED PARTNERSHIP LP Fourth Respondent JUDGE: REEVES J DATE OF ORDER: 11 JUNE 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicant's application to join the proposed respondents to this proceeding is dismissed. 2. The applicant is to pay the proposed respondents' costs of and incidental to this application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 647 of 2014 BETWEEN: DEBRA ANN CROCKER Applicant AND: TOYS 'R' US (AUSTRALIA) PTY LTD Second Respondent BABY ZONE (AUST) PTY LTD Third Respondent THE BABY PROJECT LIMITED PARTNERSHIP LP Fourth Respondent JUDGE: REEVES J DATE: 11 JUNE 2015 PLACE: BRISBANE EX TEMPORE REASONS FOR JUDGMENT INTRODUCTION 1 Ms Crocker commenced this proceeding in early December 2014. Throughout the proceeding, she has represented herself and, in that process, she has freely conceded that she does not have any legal training or experience. 2 In her originating application, Ms Crocker named four respondents: Infa Secure Pty Ltd (Infa Secure), Toys R Us, Baby Zone and Baby Co. In late December 2014, she discontinued the proceeding against Infa Secure. In April 2015, the names of the remaining respondents were amended to reflect their correct titles and status: Toys 'R' Us (Australia) Pty Ltd, Baby Zone (Aust) Pty Ltd and The Baby Project Limited Partnership LP. 3 Then, in May 2015, Ms Crocker applied to join five additional respondents as parties in this proceeding: the Registrar of Trade Marks; the Commonwealth of Australia (in respect of IP Australia); Ms Janine Brown, the Fraud Control Officer of IP Australia; the Commonwealth Minister for Industry and Science; and the Commonwealth Minister for Finance. 4 These reasons relate to that joinder application. In these reasons, unless the context requires otherwise, I will refer to these five persons jointly as the proposed respondents. MS CROCKER'S CLAIMS IN THIS PROCEEDING 5 First, it is convenient to outline the claims that Ms Crocker makes in this proceeding (which is the subject of a suppression order). In her originating application, Ms Crocker claims 15 items of relief. All of those items relate directly, or indirectly, to a trade mark Ms Crocker applied to register. In her originating application, she described that trade mark as trade mark number 1393279. While it did not emerge from her originating application, once she filed a statement of claim in February 2015, it became apparent that this trade mark application was in respect of the mark "SECURAP". SECURAP is described in Ms Crocker's statement of claim as a securing apparatus using a five and three point harness system to secure children's car seats, prams, high chairs, swings and strollers. In her originating application and statement of claim, Ms Crocker also claims to have designed the SECURAP device, and to hold copyright in relation to the instructions for its use and the marketing packaging in which it was offered for sale. Her claims include allegations that the respondents had variously infringed her registered trade mark, infringed her common law trade mark and infringed her copyright. THE JOINDER APPLICATION – DRAFT STATEMENT OF CLAIM 6 Next, it is convenient to outline the claims Ms Crocker wishes to pursue against the proposed respondents. Subsequent to her current application being filed, Ms Crocker was ordered to, and did, provide a draft statement of claim outlining her proposed claims against the proposed respondents. In short, those claims arise out of the manner in which the proposed respondents dealt with Ms Crocker's concerns and complaints about the way in which certain opposition proceedings were conducted before a Delegate of the Registrar of Trade Marks. Those opposition proceedings were commenced in 2011 after Ms Crocker's trade mark application 1393279 was accepted for registration by the Registrar in late 2010. The opposition proceedings in question were filed by Mr Horsfall of Infa Secure. Infa Secure was ultimately successful in those proceedings. As I have already noted above, Infa Secure is no longer a party to this proceeding. 7 Ms Crocker has not sought to further amend her originating application to identify the relief she seeks against the proposed respondents. However, items 1 and 14 of the claims for relief in her existing originating application may at least allude to what that relief might be. They state: [Because of a suppression order made in these proceedings, these items have been removed from these published reasons] 8 Most of Ms Crocker's draft statement of claim outlining her proposed claims against the proposed respondents is taken up with a lengthy description of the SECURAP device. In this description, among other things, she endeavours to distinguish between two different products with the same name: SECURAP, referring to a securing apparatus, and SECURAP, which she claims is an acronym for the words Secure Every Child Un Restrained All Points. However, in broad terms, the claims Ms Crocker wishes to make against the proposed respondents, as set out in the draft statement of claim, are to the effect that they were aware of her various complaints and allegations in relation to the conduct of the opposition proceedings, but they took no action to address them. 9 In addition to these more general allegations, Ms Crocker makes a number of specific allegations in relation to each of the proposed respondents. They can be summarised as follows. First, in relation to the Registrar of Trade Marks, Ms Crocker alleges that the decision of the Delegate of the Registrar did not describe in detail which particular SECURAP product was the subject of her trademark application. She claims that: [T]he decision is too vague, has been deliberately exploited to cause copyright infringement and trick retailers into copyright infringement which is a crime for which they can be punished. 10 She further claims that: [T]heir failure to differentiate the two has provided a means of copyright infringement that has caused Ministers and government persons and departments to be wholly accountable to the court for copyright infringement in their failure to investigate and determine the complexity of the matter. 11 Finally, she claims that the delegate of the Registrar did not take into account all of the information provided to her, and as a consequence: "the decision of The (sic) Registrar has been generated to cause infringement in my current SECURAP." 12 Next, in relation to IP Australia and Ms Brown, its Fraud Control Officer, Ms Crocker's claims are essentially reduced to a claim that she made a number of complaints about the opposition proceedings to IP Australia and Ms Brown but her: "complaints fell on deaf ears despite [her] requests for help and [she] was told that the decision was final and could not be reversed." 13 Finally, in relation to the two Commonwealth Ministers, Ms Crocker claims that she made complaints to those Ministers about the conduct of the opposition proceedings and: "All Ministers, the department of IP Australia and the Registrar failed to identify the obvious errors made by the [delegate]." She also claims that: "no Minister or department conducted the necessary investigations to find the truth as [she] had asserted." 14 Further, with respect to the Minister for Industry and Science, she claims that: [She] fully expected his office to find as [she] advised his office the Commonwealth Attorney-General's Office had found that [she] was dealing with copyright theft, trademark theft, counterfeiting and plagiarism. For reasons completely unknown to [her], no one found anything wrong: no errors, no unlawful opposition, no maladministration, and no unidentifiable opponent: absolutely nothing. This is concerning in the face of the physical evidence. THE OPPOSITION PROCEEDINGS 15 Since Infa Secure's opposition proceedings are the source of Ms Crocker's complaints against the proposed respondents, it is appropriate that I briefly record the basic details of those proceedings. The opposition proceedings in question were commenced by Infa Secure under Part V of the Trade Marks Act 1995 (Cth) (the Trade Marks Act) on 21 June 2011. It should be noted that Ms Crocker's application to register the SECURAP mark was made to, and accepted by, the Registrar in December 2010. 16 One week after receiving the opposition notice on 28 June 2011, IP Australia notified Ms Crocker that that notice had been filed by Infa Secure. Shortly after giving that notice to Ms Crocker, IP Australia wrote to her describing in some detail how the opposition process would proceed. From about this time, Ms Crocker began to contact IP Australia and raise certain grievances she had about the claims Infa Secure had made and claiming that Infa Secure had unlawfully procured her product. In response, IP Australia notified Ms Crocker that, while the opposition proceedings could not address those grievances, if she wished to pursue them in the courts, then the opposition proceedings could be suspended while she did that. Ms Crocker did not take up that option. 17 Later in 2011, Infa Secure delivered to IP Australia the evidence upon which it intended to rely in the opposition proceedings. IP Australia wrote to Ms Crocker on 16 January 2012 advising her that she had three months to provide any evidence upon which she wished to rely in answer to Infa Secure's evidence. It then sent her a reminder letter in March 2012, noting that the time for filing evidence had expired and she had failed to file any evidence. At the same time, it outlined how her failure to file any evidence may affect the outcome of the opposition proceedings. Notwithstanding these warnings, Ms Crocker did not file any evidence. 18 On 8 November 2012, the Delegate of the Registrar upheld Infa Secure's opposition to Ms Crocker's application and refused to register her trade mark. The Delegate provided a set of written reasons for her decision. It is worth recording some of the salient features of those written reasons. 19 First, the Delegate recorded that the only evidence before her was the evidence provided by Infa Secure. That evidence was in the form of a statutory declaration made by Mr Richard Horsfall, who was then the managing director of Infa Secure. Secondly, the Delegate noted that for Infa Secure's opposition to be successful, she needed to be satisfied on the balance of probabilities that at least one of the various grounds of opposition stated by it in its opposition notice had been made out. In this respect, the Delegate focused on the ground of opposition under s 58 of the Trade Marks Act. Thirdly, the Delegate noted that the general rule was that the first person to apply to register a trade mark will be entitled to claim to be the owner of the trade mark unless the mark had been used before the filing date. In that event, in the absence of fraud, the owner of a trade mark is taken to be the first user in the course of trade in Australia. The first user need not have invented the trade mark or first conceived of it, but rather is the first party to adopt and use the mark in a trade mark sense. 20 Accordingly, the Delegate noted that it was for Infa Secure to establish that Ms Crocker was not the owner of the trade mark SECURAP. On that issue, the Delegate turned to consider the evidence Infa Secure had provided. She recorded that it sourced safety harness goods for distribution bearing the trade mark SECUR-AP – that is, with a hyphen separating some of the letters. It secured those goods from a company known as Maternally Yours Pty Ltd from about 1995 until about 1998. Ms Crocker was a director of that company. Infa Secure continued to retail those goods after that company was deregistered in 1998, until its stocks became depleted in 2004. 21 At that time, Infa Secure arranged to manufacture the goods and sold them bearing the trademark SECURAP – that is, without the hyphen mentioned above. The evidence indicated that over 50,000 goods bearing that trademark were sold from July 2006 until the date the evidence was submitted, namely 21 December 2011. Based on this evidence, the Delegate was satisfied that the trade marks used by Ms Crocker and by Infa Secure were substantially identical and that Infa Secure had established that it made the earliest use of the trade mark on goods of the same kind as the goods claimed in Ms Crocker's trade mark application. Further, and significantly, because Ms Crocker did not provide any evidence to establish that she had used the SECURAP trade mark at any time, the Delegate found that Infa Secure had successfully established its ground of opposition under s 58 of the Trade Marks Act. She therefore refused to register Ms Crocker's trade mark. 22 Finally, it is worth noting that, in her reasons, the Delegate referred to a patent for the securing apparatus Ms Crocker claims to have designed. She recorded that the patent was jointly owned by Ms Crocker and a third party. However, she noted that the patent in question had no bearing on her decision as it had ceased to provide protection in February 1998, after the renewal fee payable in respect of it was not paid. Moreover, the Delegate found that any potential patent infringement was irrelevant to the issues that she had to decide. THE EVENTS SUBSEQUENT TO THE DELEGATE'S DECISION 23 Since the events subsequent to the Delegate's decision are also pertinent to the disposition of this application, it is appropriate to briefly summarise those as well. On the day she made her decision, the Delegate wrote to Ms Crocker and advised her of the decision. She also attached a copy of her written reasons for decision and notified Ms Crocker of her right to appeal the decision to this Court, advising her that she had 21 days in which to file such an appeal. 24 Ms Crocker was again notified of her appeal rights and the time period in which any appeal had to be filed by email from IP Australia on 16 November 2012. 25 In April and June 2013, IP Australia exchanged further correspondence, including emails, with Ms Crocker, in which it again informed her of her appeal rights. Furthermore, because by that stage the time to file an appeal against the Delegate's decision had expired, it informed her that she would need to seek an extension of time in which to appeal should she wish to pursue such an appeal. 26 Ms Crocker did not file an appeal against the Delegate's decision and she has not to date applied for an extension of time in which to pursue any such appeal. 27 Nonetheless, from at least April 2013 onwards, Ms Crocker has raised various concerns with IP Australia about the way in which the opposition proceedings were conducted. In particular, she has alleged Infa Secure had submitted fraudulent evidence to IP Australia. IP Australia investigated those allegations and, on 1 May 2013, notified Ms Crocker that it was satisfied that the proceedings had been conducted appropriately. It reiterated this position in a letter to Ms Crocker in early June 2013 and again in November 2013. For example, in the latter correspondence, Ms Janine Brown, the Fraud Control Officer of IP Australia (one of the proposed respondents in this proceeding), informed Ms Crocker that her fraud allegations had been investigated and nothing had been found which substantiated her complaints about the conduct of the opposition proceedings. In the meantime, in late June 2013, Ms Crocker requested IP Australia to reopen her application for registration of the SECURAP mark. Shortly thereafter, IP Australia responded to her advising her that it was unable to do that. MS CROCKER'S RECENT COURT PROCEEDINGS 28 Finally, it is appropriate to mention two more recent court proceedings that Ms Crocker has commenced. In September 2014, Ms Crocker filed an originating application in the Supreme Court of Queensland seeking a review of the Delegate of the Registrar's decision to refuse to register her trade mark. In November 2014, that application was dismissed by Applegarth J on the basis that the Supreme Court had no jurisdiction to entertain it. 29 Shortly thereafter, in December 2014, Ms Crocker commenced this proceeding in this Court. However, earlier this year, Ms Crocker also commenced another proceeding in this Court, which is noteworthy. In March 2015, Ms Crocker filed an application in this Court for an extension of time to seek judicial review of the Delegate of the Registrar's decision. That, I would emphasise, was not an application for extension of time to appeal that decision. Directions were made in that proceeding by Collier J in April 2015, including an order that the application be set down for hearing. However, prior to the date set for hearing, Ms Crocker discontinued that proceeding. The relevant principles 30 The principles bearing upon an application to join a respondent under r 9.05 of the Federal Court Rules 2011 (the Rules) are set out hereunder. First, r 9.05 of the Rules allows a party to apply for an order that a person be joined as a party to a proceeding, if the person: (a) ought to have been joined as a party to the proceeding; or (b) is a person: (i) whose cooperation might be required to enforce a judgment; or (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 31 The pre-2011 equivalent rule to r 9.05 was O 6 r 8. It was less expansive than r 9.05. It replicated subrule (a) of r 9.05, but subrule (b) was expressed in the following terms: … is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon. 32 While it may not address the question of enforceability identified in r 9.05(b)(i) above, I consider the words "effectually and completely determined and adjudicated upon" in O 6 r 8 cover most, if not all, of the broad concepts of completeness, finality and avoidance of multiplicity that are conveyed by subrules 9.05(b)(ii) and (iii). That being so, I consider the decisions on the operation of O 6 r 8 will continue to provide some guidance as to the principles that may be relevant to an application for joinder under r 9.05. 33 Ms Crocker did not identify which part of r 9.05 she relied upon, nor any principles bearing upon the application of that rule. Mr Musgrave, counsel for the proposed respondents, submitted that, in order to obtain leave to join the proposed respondents, Ms Crocker needed to show that she had an arguable case against them. He submitted that the standard of proof required was that necessary to resist a summary judgment application if one were to be brought by the proposed respondents, had they been sued in separate proceedings: relying upon Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009 (Review) at [5] per Heerey J. He submitted it was not sufficient for Ms Crocker to establish that a claim against the proposed respondents is not unarguable and, instead, she must demonstrate an affirmative case against them: relying upon Comcare v John Holland Rail Pty Ltd [2009] FCA 660 (John Holland) at [13] per Jessup J and Brisbane Slipways Operations Pty Ltd v Pantaloni [2010] FCA 654 (Pantaloni) at [153] per Greenwood J. 34 It seems to me that these two submissions cannot stand together. Indeed, Jessup J concluded as much in John Holland where, after reviewing all the relevant decisions on this point, including the decision of Heerey J in Review and the earlier decision of Tytel Pty Ltd v Australian Telecommunications Commission (1988) 11 IPR 223, upon which that review was based, his Honour concluded (at [13]) that: [I]t will not be sufficient for an applicant seeking joinder merely to show that he or she has claims against the proposed respondent which could not be dismissed as unarguable in the General Steel sense. 35 Instead, his Honour decided that the application before him should be decided (at [16]): … by reference to the very words of par (b) [of O 6 r 8(b)], where the need effectually and completely to determine all matters in dispute is the principal consideration. 36 In Pantaloni at [153], Greenwood J agreed with Jessup J and took a similar approach. Having read and considered both decisions, I consider I should adopt that approach in this application. That means asking, in the terms of r 9.05(b)(ii): whether Ms Crocker has demonstrated that joinder of the proposed respondents is necessary to ensure that each issue in dispute in this proceeding is able to be heard and finally determined? This obviously requires a primary focus on the issues in dispute in this proceeding and answering the question whether the proposed respondents' presence as parties is necessary to ensure that those issues are able to be heard and finally determined. Answering this question does not, therefore, require an examination of the issues Ms Crocker may wish to pursue against the proposed respondents in this proceeding and whether those issues are unarguable in the sense outlined in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel). 37 Alternatively, determining this application by reference to the words of r 9.05(b)(iii) requires one to ask the question, in terms of that rule: whether Ms Crocker has demonstrated that the joinder of the proposed respondents should occur in order to enable the determination of a related dispute and, as a result, avoid a multiplicity of proceedings? This alternative question obviously requires a primary focus on the related dispute mentioned in subrule 9.05(b)(iii) and whether its determination is necessary in this proceeding to avoid a multiplicity of proceedings. 38 In requiring this focus on the related dispute, I think at least two factors arise for consideration. First, whether the other dispute, that is the related dispute, is indeed related to the dispute in the present proceeding and, secondly, whether the other dispute exists. In this second respect, it may be appropriate to assess whether the other dispute is unarguable in the General Steel sense. 39 As to the concluding words of subrule 9.05(b)(iii), that is, "avoiding a multiplicity of proceedings", I would add these observations. It seems to me those words introduce similar considerations to those discussed by French CJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27, albeit that in that case French CJ was dealing with a rule providing for amendments to pleadings for the purposes of deciding the real issues in dispute in the proceeding and thereby avoiding a multiplicity of proceedings. In that context, his Honour said of the discretion to allow an amendment to avoid multiplicity (at [24]): The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. 40 The circumstance of an imminent trial date does not, of course, arise in this application. Nonetheless, I consider the other sorts of considerations discussed by French CJ do apply here. This conclusion is supported by the fact that those considerations are now reflected in the overarching purpose of civil practice and procedure in this Court, expressed in s 37M of the Federal Court of Australia Act 1976 (Cth) of disposing of proceedings justly, quickly, inexpensively and as efficiently as possible. There is, therefore, every reason why that overarching purpose falls to be considered when a party wishes to bring other parties into an existing piece of litigation. 41 Before I leave this consideration of r 9.05 and the principles relevant to its application, I should add that I did not detect any intention on Ms Crocker's part, so far as that could be detected at all, to rely upon r 9.05(a) or (b)(i). If I am incorrect about this, I do not consider she has established that either of those provisions applies here. Consideration 42 Applying these principles to this application, I consider Ms Crocker's application fails on both of the relevant legs of r 9.05(b). In the first place, I do not consider the joinder of the proposed respondents is necessary to ensure that each issue in dispute in this proceeding is able to be heard and finally determined. Putting aside the obvious difficulties associated with Ms Crocker's failure to achieve registration of the mark SECURAP, the dispute in this proceeding essentially relates to the alleged infringement of that trade mark under the Trade Marks Act and alleged infringement of the trade mark at common law. It also relates to alleged infringements of copyright in the instructions and packaging of the device. On the other hand, the dispute involving the proposed respondents relates to the conduct of the opposition proceedings and the way in which the various proposed respondents dealt with Ms Crocker's complaints and concerns about those proceedings. While it relates to the same mark and device or product, each dispute plainly relates to a different set of factual circumstances, relates to a different period of time, and involves a different group of actors. Since these two disputes are quite discrete and separate, I do not therefore consider the proposed respondents' joinder is necessary to ensure that the issues in dispute in this proceeding are able to be heard and finally determined. 43 Turning then to the question of whether the joinder of the proposed respondents should occur in order to enable the determination of a related dispute and, as a result, avoid multiplicity of proceedings. First, for the reasons I have given immediately above, I do not consider Ms Crocker's claims against the proposed respondents are relevantly related to her claims in this proceeding. Secondly, I do not consider that any of the vague and amorphous allegations Ms Crocker has outlined in her draft statement of claim in relation to the proposed respondents constitutes an arguable cause of action that she could pursue in this Court. These conclusions would be sufficient to dispose of the application on this alternative leg. 44 However, it is appropriate to say something about the shameless and shameful waste of public resources that is being occasioned by Ms Crocker's pursuit of this application. I use the word "shameless" deliberately. It refers to the attitude that Ms Crocker brazenly expressed in the following paragraph of her application seeking the present orders: I fully disclose to the court that this is a legally tactical move on my part and I believe that upon service of this sealed document should it be sealed, it would bring a swift resolution to my matter without the need for further hearings in the court. I do not believe that any Federal Minister wishes to be named as a respondent to the crime of piracy or copyright infringement. It is my full intention to name each of these parties at some point during the proceedings of the matter and I believe this should be done now so they can make informed decisions as to the addressing of this matter given their positions now in the infringement of my property by them also infringing my copyright and breaching my moral rights as the inventor of the property in full before the court. 45 Thus far, this "tactical move", to use Ms Crocker's language, has led to two appearances by counsel and solicitors for the proposed respondents and all the costs associated therewith. Since all the proposed respondents are connected with the Commonwealth Executive in one way or another, it is obvious that those costs will have to be met from the public purse. To compound this waste of public resources, there is the Court time that has been devoted to hearing this application, and preparing these reasons for decision. That time could have, and indeed should have, been devoted to proceedings involving litigants with genuine claims. Having abused the process of this Court to employ this so-called "tactic", it is a strange irony that Ms Crocker was able to obtain an exemption for the payment of the Court's fees that a genuine litigant in this Court is ordinarily required to pay. And on this aspect, it is worth adding that this is just one of nine applications that Ms Crocker has filed since she commenced this proceeding. In this instance, it seems a genuine user pays, but an abuser does not. Furthermore, it is to be noted that this waste of public resources has occurred in circumstances where Ms Crocker has been told repeatedly in clear and easily understandable terms from the time of the Delegate's decision that she has (or had) a right of appeal against that decision and she has consistently ignored that advice for the past two and a half years, or more. In my view, this unfortunate outcome calls for review by the appropriate Commonwealth authorities. 46 For these reasons, Ms Crocker's application to join the proposed respondents is dismissed. 47 As to the question of costs, based upon the matters I have outlined above, I consider this is one of those rare and exceptional circumstances where it is appropriate to order costs in favour of a non-party to proceedings. I therefore order that Ms Crocker pay the proposed respondents' costs of and incidental to her application to join them as parties in this proceeding. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 16 July 2015