Clayton Robert Croker v Hutchison 3G Australia Pty Limited; Clayton Robert Croker v Hutchison 3G Australia Pty Limited [2005] NSWSC 1242

New South Wales Supreme Court

CITATION : Clayton Robert Croker v Hutchison 3G Australia Pty Limited; Clayton Robert Croker v Hutchison 3G Australia Pty Limited [2005] NSWSC 1242

HEARING DATE(S) : 8 September 2005

JUDGMENT DATE : 9 September 2005

JUDGMENT OF : Latham J

DECISION : The appeal is dismissed. The appellant is to pay the respondent's costs on this appeal.

CATCHWORDS : Security for costs - Discretionary factors.

House v The King (1936) 55 CLR 499 Croker v Sydney Institute of TAFE [2003] FCA 942 CASES CITED : Equity Access Limited v Westpac Banking Corporation and Ors (1989) ATPR 40-972 KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FRC 189 Bell Wholesale Company Pty Limited v Gates Export Corporation (No 2) (1994) 2FRC

Plaintiff - Clayton Robert Croker PARTIES : Defendant - Hutchison 3G Australia Pty Limited

FILE NUMBER(S) : SC 30008/2005; 30012/2005

Plaintiff - Self represented SOLICITORS : Defendant - Ms C Mullins

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

LATHAM J

9 SEPTEMBER 2005

O30008/05 - CLAYTON ROBERT CROKER v HUTCHISON 3G AUSTRALIA PTY LIMITED O30012/05 - CLAYTON ROBERT CROKER v HUTCHISON 3G AUSTRALIA PTY LIMITED

JUDGMENT

1 LATHAM J: The appellant, Clayton Robert Croker appeals against a decision of Malpass AsJ delivered on 28 July 2005. That decision was a dismissal of notices of motion filed by the appellant seeking a review of an order made by Assistant Registrar Howe requiring the appellant to provide security for costs in respect of proceedings in this court by the appellant against the respondent. I refer to notices of motion in the proceedings SC 30008/05 and 30012/05. 2 The proceedings have a somewhat tortuous history. I am not concerned with the merits of the appellant's case before the Consumer Trade and Tenancy Tribunal which began this sorry saga of litigation. I am only concerned with the correctness of the decision from which the appellant appeals. 3 In order to succeed on this appeal the appellant must demonstrate that Malpass AsJ made findings of fact that were so flawed that appellate intervention is justified or that insofar as Malpass AsJ independently exercised his discretion to make the orders complained of, that discretion miscarried in the sense identified in House v The King (1936) 55 CLR 499. 4 The findings of fact made by Malpass AsJ were: 1. The address for service provided by the appellant contained a number of businesses, including the Darlinghurst Post Office.