CROKER v COMMISSIONER OF TAXATION [2003] NSWSC 980

New South Wales Supreme Court

CITATION : CROKER v COMMISSIONER OF TAXATION [2003] NSWSC 980 HEARING DATE(S) : 28 October 2003 JUDGMENT DATE : 28 October 2003

JUDGMENT OF : Levine J DECISION : 1. Proceedings dismissed as frivolous and as otherwise disclosing no cause of action.; 2. The plaintiff is to pay the defendant's costs of the action and of the proceedings today.

CATCHWORDS : Defamation - action dismissed as frivolous CASES CITED : Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 492 CLAYTON ROBERT CROKER (Plaintiff)

PARTIES : v

COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA (Defendant) FILE NUMBER(S) : SC 20096 OF 2003 Plaintiff- in person COUNSEL : K Smark (Defendant) Plaintiff - in person SOLICITORS : Australian Government Solicitor (Defendant)

- 1 - Ex tempore: revised [2003] NSWSC 980 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

TUESDAY 28 OCTOBER 2003

20096 OF 2003

CLAYTON ROBERT CROKER (Plaintiff)

v

COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA (Defendant)

JUDGMENT (Defamation – action dismissed as frivolous) 1 By a further amended statement of claim filed on 16 September 2003 pursuant to orders made on 22 August this year, the plaintiff, Mr Croker, who has appeared before me in person, sues the defendant, Commissioner of Taxation, purportedly in causes of action for defamation. 2 An analysis of this most recent pleading is usefully contained in Schedule A to the SCR Pt 67 r 12A notice delivered by the defendant's solicitors. Although that notice relates to an earlier pleading, as I understand it, it can be made to coincide with the further amended statement of claim with which I am concerned. 3 The publications of which the plaintiff complains are said to have been made on the Federal Court's website, in The Sydney Morning Herald's law list in general terms and by the affixing of the court's lists within the Law Courts building in the public area in the lobby and, as I take it, outside the relevant court in which the litigation between the plaintiff and the defendant was to be heard. 4 The defendant seeks to principally have the proceedings dismissed pursuant to SCR Pt 13 r 5 of the rules of this Court; that is, the frivolity application. Alternatively, the defendant otherwise mounts an attack on various components of the pleading as not complying with rules relating to the pleading of causes of action in defamation. Finally, the defendant would seek security for costs under Pt 53 r 2(c). 5 I propose to deal with the matters in reverse order, in this sense: had the point been reached where I would consider the defendant's application for security for costs, I could not see it failing. The rule under which it is sought provides that the court could order for security where the address of the plaintiff is not stated or is misstated in his originating process, provided that the court shall not order the giving of security for that reason without it being shown that there was an intention to deceive. 6 The statement of claim in the prescribed form requires an address to be given for the plaintiff. See form 5 of SCR Pt 4 r 1. The address the plaintiff has given, as I understand it, is a post office. 7 The plaintiff has had trouble prior to my concerning myself with this matter in relation to giving that address, as I understand the decision of her Honour Bennett J of 8 September this year in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 492 in para [19], where her Honour refers to certain observations made by Gyles JA in other proceedings and the problem flowing from her Honour's own decision, and in particular I refer to para [25]. Were it necessary for me to come to a definitive conclusion, I would have no reservation in saying that the positing of a post office as an address could be viewed in the light of the history of this matter as I understand it, only as an exercise in deception to obviate the proper processes of this Court. 8 Moving back to the antecedent matter, the statement of claim is riddled with defects, some of which are really quite minor and by themselves would not be a matter of concern and could be easily dealt with. The relief sought by the plaintiff, for example, in order 1 is not in the usual form, seeking such things as statutory damages, compensatory damages, aggravated damages and nominal damages. I note it makes no express claim for punitive or exemplary damages. That claim for relief easily could be tidied up. 9 Another example of perhaps a comparatively inconsequential defect is in paragraph 9, which makes an averment in language no longer applicable to proceedings under the Defamation Act 1974, and which also easily could be rectified. 10 On the assumption, however, that the pleading properly sets out that which it is alleged was published by the defendant, to which concept I will return, the plaintiff would be confronted by the usual difficulties of form and capacity of pleaded imputations. Whilst a publication understood as adversely linking a person's name with the Commissioner of Taxation could on reasonable grounds give rise to a disparagement of that person, great care must be taken in identifying precisely what is being said and wording what is being said appropriately as an imputation. There are nine meanings divided into groups of three and six, all of which would have to be struck out in terms of form, perhaps two or three of which would be amenable to redrafting to capture an appropriate meaning and be proper in form. 11 The further amended statement of claim alleges publication by the defendant in the three areas to which I have referred, but strictly does not comply with SCR Pt 67 r 12(1)(a) and (b) in particular. 12 I come back now to the first ground. This Court has power, as it must have power, to dispose of actions that fall into three categories. One is where no reasonable cause of action is disclosed as between the plaintiff and the defendant by reference to what is pleaded. Second, where the proceedings are frivolous or vexatious and, third, where the proceedings are an abuse of the process of the court. It is the first two with which I consider myself principally concerned, especially the second. 13 The defendant is the Commissioner of Taxation. It is said, or it is sought to be said, that the Commissioner has committed the tort of defamation by publishing an entry in a law list. 14 First, even if it be the case that the bankruptcy notices issued by the Commissioner were in some way defective or have been found to be defective, that by itself cannot found any legal liability of the Commissioner as a publisher in the way the plaintiff seeks to make him. 15 Second, the Commissioner merely as a litigant in this or the Federal Court plays no part, has been shown to have played no part, in that act that constitutes publication in the three areas to which I have referred. 16 Whilst Mr Croker might well have a genuinely held belief that he has a grievance against the Commissioner for Taxation, these proceedings challenged by the Commissioner are, quite frankly, irremediably hopeless and, pursuant to SCR Pt 13 r 5, I dismiss them as frivolous and as otherwise disclosing no cause of action. 17 As Mr Croker is no doubt aware, subject to sections in the Defamation Act he can try again. But this one has failed. 18 The plaintiff is to pay the defendant's costs of the motion and of these proceedings today.