Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 (3 February 2003)

Last Updated: 3 February 2003

FEDERAL COURT OF AUSTRALIA

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34

ADMINISTRATIVE LAW - review sought of conduct of Deputy Registrar of the High Court - whether administrative or judicial - whether decision - no ground for review made out - discretionary considerations

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Judiciary Act 1903 (Cth) s 39B

High Court of Australia Act 1979 (Cth) ss 17, 19, 27

Federal Court of Australia Act 1976 (Cth) s 32

High Court Rules 1952 O 69A r 13(1)

Federal Court of Australia Regulations 1978 (Cth) subregs 2(1), 2(4)

Burns v Australian National University (1982) 40 ALR 707 referred to

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 referred to

Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 referred to

Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 referred to and discussed

Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 referred to

Letts v Commonwealth of Australia (1985) 62 ALR 517 applied and discussed

Little v Registrar of the High Court of Australia (1990) 24 FCR 391 referred to and discussed

Northern Territory of Australia v Lane (1995) 59 FCR 332 referred to

Attorney-General (Cth) v Queensland (1990) 25 FCR 125 referred to

CLAYTON ROBERT CROKER v DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA & ANOR

N 1402 of 2001

ALLSOP J

3 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1402 of 2001

BETWEEN:	CLAYTON ROBERT CROKER APPLICANT
AND:	DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA FIRST RESPONDENT GEORGE CHALLONER SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	3 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents' costs.

3. The second respondent be granted liberty to relist the matter within 7 days to vary order 2.

4. The parties not enter order 2 for a period of 7 days from the date of the making of these orders.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1402 of 2001

BETWEEN:	CLAYTON ROBERT CROKER APPLICANT
AND:	DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA FIRST RESPONDENT GEORGE CHALLONER SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	3 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks relief under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) and s 39B of the Judiciary Act 1903 (Cth) against the Deputy Registrar of the High Court of Australia (the first respondent) in respect of what the application describes as a decision of the Deputy Registrar (Mr Grey) on 14 September 2001 under O 69A r 13(1) of the High Court Rules.

2 The application is somewhat confused; however the claims of the applicant as contained in the application are as follows (all errors appear in the original):

5. An order for a writ of certiorari quashing the decision of the respondent dated the 14^th day of December 2001 (HCA No S.296 OF 2000) as to the breaches of the Administrative Decisions (Judicial Review) Act (Cth) 1977, secs 5(1)(a). 5(1)(b), 5(1)(c), 5(1)(f), 5(1)(j), 5(2)(b), 5(2)(d), 5(2)(f), 5(2)(g), and 5(2)(j). And the High Court Rule 1952 (Cth) Order 69A Rule 10(9) and 13(1).

6. An order for a writ of mandamus compelling the respondent to accept the Application Books in the undertaking Clayton Robert Croker Applicant - and - George Challoner Respondent No S.296 of 2000 HCA. And set a date for hearing.

7. That the High Court Rule 1952 (Cth) ORDER 69A RULE 13(1) be dispensed with.

8. That the respondent pays the sum of $1,000,000.00

9. That the respondent pays damages.

10. The respondent pays the cost of the application.

11. Such other orders as the Court thinks fit.

3 The second respondent to the proceedings, Dr George Challoner, was joined to the proceedings in circumstances to which I will come.

4 On 18 December 2000 Mr Croker filed an application for special leave to appeal in the Sydney Registry of the High Court of Australia against Dr Challoner. The application concerned orders of the New South Wales Court of Appeal (Mason P, Powell JA and Fitzgerald JA) which dismissed a motion for review of a judgment of Giles JA dismissing what was, in essence, an application for an extension of time to appeal against a decision of Sinclair DCJ. That conclusion cuts through some of the procedural confusion in the Supreme Court caused by Mr Croker's various applications. Giles JA concluded by saying:

Nonetheless, on an application for an extension of time it is appropriate to consider the prospects of success of the appeal. Sinclair DCJ's decision was unarguably correct, and the grounds of appeal make no sense as challenges to the decision. In those circumstances I consider that an extension of time should be refused, and in consequence the notice of appeal should be struck out. I so order, and order that Mr Croker pay Dr Challoner's costs.

5 Powell JA, after setting out the history of the matter, said the following:

In my view, Mr Croker has failed utterly to demonstrate that Giles JA misdirected himself in the point of principle or that the discretion vested in him miscarried and, for that reason, I would propose that the Motion be dismissed with costs.

6 The matter before Sinclair DCJ was described by Giles JA in his reasons as follows:

Mr Croker sued Dr Challoner in the District Court, claiming damages in relation to dental treatment. On 6 August 1999 Sinclair DCJ ordered that his claim be struck out, in short on the grounds that the pleading did not disclose a cause of action and that, despite ample opportunity to do so, Mr Croker had not provided particulars requested by Dr Challoner which may have enabled content to be given to the pleading.

7 On 8 January 2001, Deputy Registrar Carlsund wrote to Mr Croker informing him, amongst other things, of the temporal requirements of O 69A rr 6, 7, 8 and 9 of the High Court Rules. Mr Croker's attention was specifically drawn to O 69A r 13. The letter concluded as follows:

I draw your attention to Order 69A rule 13, which provides for the abandonment of an application by delay. Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court, a Justice or Registrar has otherwise ordered or directed. On the request of the respondent the Registrar shall provide a certificate of deemed abandonment and Order 69A rules 12(2), (3) and (4) with respect to the payment by the applicant of the respondent's costs shall apply.

The Court regards compliance with these time limits as critical to the disposition of the application. Accordingly, extensions of the time limits provided in Order 69A will only be granted in exceptional circumstances.

If I can be of further assistance, please contact me on [number provided].

[emphasis in original]

8 On 15 January 2001 Mr Croker filed in the Office of the Sydney Registrar his summary of argument. He thus complied with O 69A r 6, in terms of time of filing.

9 Dr Challoner filed his summary of argument on 15 February 2001, to which Mr Croker apparently filed a reply on 26 February 2001. On 7 March 2001 Deputy Registrar Carlsund indicated that two notices of motion from the Court of Appeal proceedings should be filed by 4 April 2001 to enable a draft index to be prepared.

10 On 10 July 2001 Deputy Registrar Grey wrote to Mr Croker appointing Thursday 26 July 2001 at 3 pm as the date and time to settle the index for the application book in accordance with O 69A r 10(2). A draft index was enclosed. The letter also contained the following invitation and information:

...If you wish to include material in the application book that is not listed in the draft index, a copy of that material should be brought to the appointment to settle the index.

On that date, information will also be provided concerning preparation of the application books and possible dates for hearing.

11 I interpolate at this point that in par "XXIV" of his affidavit sworn 22 February 2002, Mr Croker alleges, without particulars or any coherent explanation, that the "act of changing sole carriage" of the proceeding from Deputy Registrar Carlsund to Deputy Registrar Grey was an act of bad faith. It is not said by whom. The assertion is baseless and should not have been made, even by a litigant in person.

12 A conference was held on 26 July 2001 to settle the index. On 27 July 2001 Deputy Registrar Grey wrote to Mr Croker in the following terms, enclosing a further draft of the index:

Could you please provide me with copies of those documents marked with an asterisk by 31 July 2001? I advise that failure to provide me with those documents may result in the hearing of your matter being delayed.

As soon as I have received the requested documents I will settle the index. At this stage, I have tentatively set 5 September 2001 as the date for the Application Books to be filed and 14 December 2001 as the date for this matter to be heard.

13 The draft index had eighteen documents listed: two from the District Court of New South Wales, eleven from the Supreme Court of New South Wales and five from the High Court. All were Court documents.

14 In par "XXV" of the affidavit of Mr Croker he made complaint about the conduct of the Deputy Registrar at this conference on 26 July 2001. The paragraph reads as follows (all errors are contained in the original):

...In addition the Matt Grey, Deputy Registrar of the Hight Court Australia was informed and requested to co-operate with payment dates of Australian Government Pension that applicant is a receipt of, applicant sore this as a reasonable request, the request fell on deaf ears. This is alleged to be further acts of bias and bad faith.

15 I make the same comments about this assertion of bias and bad faith as I did at [11] above.

16 Mr Croker then apparently spoke to Deputy Registrar Grey, telling him that one of the documents in the draft list did not exist. Thereafter, on 3 August 2001 Deputy Registrar Grey wrote to the parties in the following terms:

Enclosed is a copy of the settled application book index, along with an information package on how to prepare the application books.

Please ensure that seven copies of the application books are filed in the Registry by 4.00 pm on 5 September 2001. Three copies must also be served on the solicitors for the respondent by this date.

It is expected that this matter will be listed for hearing on 14 December 2001.

[emphasis in original]

17 In par "XXXIII" of his affidavit Mr Croker said, in respect of this index:

The said settled index is review [sic] by applicant and is seen to be in need of redrafting again.

18 No details were given in the affidavit of the alleged inadequacy of the draft index in the affidavit. No evidence was given by Mr Croker of any contact with Deputy Registrar Grey at this point.

19 On 7 September 2001 (Mr Croker being now out of time for the filing and serving of the application books), Deputy Registrar Grey wrote to Mr Croker in the following terms:

I refer to my letter of 3 August 2001 in which it was directed that the application books be filed and served by 5 September 2001. As yet the books have not been received in this office.

I shall extend the time for filing of the books until 4.00 pm on Friday 14 September 2001. Unless the books are filed by this date the matter shall be deemed abandoned pursuant to Order 69A Rule 13(1) of the High Court Rules.

[emphasis in original]

20 Mr Croker gave evidence in his affidavit that on 14 September 2001 he had a conversation with Deputy Registrar Grey at the Sydney Registry. The conversation was said by Mr Croker to have been in the following terms:

Mr Grey: You will need to file your application books today or you are at risk of the undertaking being abandon [sic].

Mr Croker: They (application books) will be file [sic] on Wednesday (ninetieth [sic] day of September in the year Two Thousand and One) if that is any comfort.

Mr Grey: It's no comfort too [sic] me, it's your undertaking!

21 The first respondent filed a submitting appearance. There was no evidence contesting this conversation.

22 In par "XXXVII" of his affidavit Mr Croker sought to explain why he could not file the application books until 19 September 2001:

The response was that the Wednesday the ninetieth [sic] day of September in the year Two Thousand and One would be the only time in which the application books could be filed due to financial disability and time availability.

23 On 14 September 2001, the day of the conversation with Mr Croker and the last day (already once extended) for the filing of the application books, Deputy Registrar Grey wrote the following letter to Mr Croker:

I refer to your Application for Special Leave to Appeal.

As you have failed to comply with the relevant provisions of Order 69A of the High Court Rules, your Application for Special Leave to Appeal is deemed to have been abandoned as from today. This has been done in accordance with Order 69A, Rule 13 of the High Court Rules.

24 Order 69A rule 13 is, relevantly, in the following terms:

(1) Where an applicant fails to comply with subrules 4(1), 4(2), 6(1) or 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

25 The effect of the subrule itself is to cause the application to be deemed abandoned, which consequence is avoided by the "Court or a Justice or Registrar" otherwise ordering or directing. ("Registrar" includes Deputy Registrar: O 1 r 5.) Thus, the decision or act of the Deputy Registrar at this point could be no more than a decision not to order or direct otherwise for the purpose of O 69A r 13.

26 It is this decision or act in respect of which Mr Croker comes to the Federal Court of Australia for remedies in the terms claimed. The application, as set out at [2], was filed on 8 October 2001.

27 The matter came before me on 4 December 2001. At that point the only party to the proceedings was the Deputy Registrar. A submitting appearance was made. I directed Mr Croker to file points of claim in order to better understand his complaints. On 18 December 2001, the matter came before me again. I spent some time explaining to Mr Croker that if, as he said, he had a valuable claim against Dr Challenor (not a party at this point), he should perhaps take all steps possible to resuscitate his High Court application. I explained that if he did this, a Justice of the High Court, upon having the matter explained to him or her with evidence, might reverse the abandonment. I also explained that if this course was not taken there may be an impact on his case in the Federal Court. I also ordered that Mr Croker file an affidavit setting out all relevant matters by 19 February 2002 and that he file a summary of his argument. I also told Mr Croker that if he proceeded in this Court without going to the High Court, he would have to join Dr Challenor because of his obvious interest in the matter.

28 On 21 February 2002, in an extended directions hearing, I discussed with Mr Croker his evidence and courses of action available to him. I said the following:

There's a question as to whether... this court can issue a prerogative writ to an officer of the High Court registry. Leave that aside, the point I was making last time was that if you want to have your appeal heard by the High Court or your special leave application heard by the High Court and there is now a deemed abandonment in your way one way of dealing with that is to move the court or a Justice of the court for orders granting you leave to proceed with the special leave application and to overcome the effect of a deemed abandonment under the Rules.

Now, you'll need to have all your documents ready to go before the High Court, that is, the application book prepared and say I am ready and the circumstances of the deemed abandonment were as follows and you need to explain as you've explained in this affidavit that the only reason you couldn't do it by the 14^th was the lack of the funds from your pension. That doesn't come out clearly in this affidavit. You may have to make that clear. Now, if a Judge of the High Court refuses to permit you to overcome the abandonment then so be it. If he or she does then you can have your special leave application. It seems to me that if it is a valuable - if you've got valuable rights there the right way, the most appropriate way to try and protect them is to ask a Judge of the High Court, a Justice of the High Court to undo the effect of the deemed abandonment.

29 I stood the matter over to 26 March 2002, indicating that should Mr Croker not wish to so move the High Court, he should join Dr Challenor, who should be asked to attend on the next occasion.

30 In early March 2002, Mr Croker made enquiry of Deputy Registrar Carlsund seeking help of a practical nature as to the appropriate way to set aside the abandonment of the proceedings. On 6 March 2002, Deputy Registrar Carlsund wrote a letter to Mr Croker (which was sent by email) in the following terms:

I refer to your e-mail of 4 March 2002 inquiring about an application to this Court to set aside the deemed abandonment of the above matter.

You have two options:

1. File a further application for special leave to appeal in which you seek an order to dispense with the requirements of Order 69A Rule 3(1). You will need to file an affidavit in support together with the documents listed under Order 69A Rule 2(2).

2. File a Chamber Summons with an affidavit in support. This is not an application in the nature of a review of Registrar Grey's decision, but a summons seeking an order of a Justice invoking the power of the Court referred to in Order 60 Rule 6 of the Hight Court Rules.

31 Notwithstanding the clarity and simplicity of the advice, Mr Croker decided to make no application to the High Court, nor did he take any further steps in the High Court in an effort to resuscitate or replace his application for special leave.

32 During the course of 2002, Mr Croker made a number of requests for documents from the High Court. The Federal Court expressed these requests by letter to the High Court. The requests were for documentation in the High Court concerning proceedings brought by Mr Croker against parties, other than Dr Challenor. Those documents were produced. They were tendered. I will say something about this at the end of these reasons.

33 The documents produced by the High Court were relied upon by Mr Croker to show what he says is some practice in the High Court inconsistent with the approach of Deputy Registrar Grey. The last sentence may overstate the matter. At the hearing Mr Croker made no specific reference to the documents that he tendered (although it should be noted that references were made to certain of these documents in the Applicant's Summary of Argument filed on 25 March 2002). I have examined the documents tendered. I do not propose to burden this judgment with reference to them beyond saying that there is nothing in them which assists in any way in assessing the lawfulness and appropriateness of Deputy Registrar Grey's conduct in respect of Mr Croker's application against Dr Challenor. Some matters reflected in the documents took longer than others. Delay was tolerated in some, for reasons which are unexplained by the evidence.

AD(JR) Act claim

34 Mr Croker's written summary of argument was to the following effect (all errors appear in the original):

(i) It is alleged practice and procedures, acts and omissions of the Deputy Registrar of the High Court of Australia are alleged to be bias, against the doctrine of general reliance, in bad faith, negligence, breaching duty of care, omissions to exercise statutory powers, in absence of statutory duty, breaching reasonable foreseeability of delay, excluding the doctrine of proximity, against policy considerations, public duty, and a misfeasance in public office. It is alleged that the loss of use of amenity has endangered the carriage of the applicant's undertaking and the probability of a successful result of the application [amongst other things].

(ii) It is alleged the Registrar of the High Court of Australia in it's practice and procedure of the matter has long exceeded the time specification in the High Court Rules 1952 (Cth) Order 69A Rule 13(1) and that the applicant is at no fault. The application was filed on the eighteenth day of December in the year two thousand and the six months ended on the eighteenth day of June in the year two thousand and one.

(iii) Respondent has failed to adequately exercise statutory power and perform statutory duty; the failure to act has arisen contrary to make to me direct and indirect assertions. The chance granted to me by the Australian Parliament and been wilfully suppressed by the respondent.

(iv) In addition it is alleged that the general reliance, duty of care and acts and omissions by Matthew Grey, Deputy Registrar has failed to comply with statutory requirements and in general been acts and omissions of gross and wilful negligence, bad faith and bias.

35 Mr Croker places reliance upon pars 5(1)(a), (b), (c), (f) and (j) and (2)(b), (d), (f), (g) and (j) of the AD(JR) Act.

36 The first difficulty is that the decision (if there be one) or conduct (for the purpose of s 6, though not specifically relied on) may not be a decision or conduct related to a decision "of an administrative character".

37 Section 17 of the High Court of Australia Act 1979 (Cth) provides that the High Court should administer its own affairs subject to, and in accordance with, that Act. Section 19 of that Act delineates the functions and powers of the Chief Executive and of the Principal Registrar. Subsection 26(7) provides:

The Senior Registrar and Deputy Registrars are to perform such duties in respect of proceedings in the Court as are assigned to them by Rules of Court, by an order of the Court or by the Chief Executive and Principal Registrar.

38 What is "administrative" and what is "judicial" may not be amenable to comprehensive satisfactory definition: Burns v Australian National University (1982) 40 ALR 707, 714; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, 634; Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649, 657.

39 In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154, Toohey J held that the Federal Court had jurisdiction under the AD(JR) Act to review a decision of the Deputy Registrar of the Family Court not to accept a notice disputing a bill of costs sought to be lodged by the Legal Aid Commission. The decision was held to be administrative. Reference was made to what Windeyer J said in Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69, 92. The question as to what is "truly ancillary" or subservient to the adjudication of the Court is not easy. In Letts v Commonwealth of Australia (1985) 62 ALR 517, Toohey J once again dealt with the question. There his Honour held that a decision of the Registrar of the High Court to refer the matter to a Justice under O 58 r 4(3) based on the Registrar's view that the process was an abuse of process or frivolous or vexatious was not of an administrative character. Toohey J said at pp 519-20:

The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was ... part of the organization through which the powers and jurisdiction of the court were exercised...": Commonwealth of Australia v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission (WA) v Edwards, supra, may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that court.

40 In Little v Registrar of the High Court of Australia (1990) 24 FCR 391 Jenkinson J saw the character of the Registrar's function in striking the applicant's name from the Register of Practitioners as administrative. See also Northern Territory of Australia v Lane (1995) 59 FCR 332 and Attorney-General (Cth) v Queensland (1990) 25 FCR 125.

41 I am inclined to the view that this is a decision (if it be such) which is not administrative but of a judicial character of the kind described by Toohey J in Letts, supra. The actions of the Deputy Registrar were open to direct and indirect review by a Justice of the High Court. The Deputy Registrar was dealing with the conduct of the matter, in effect by way of directions. However, I do not propose to rest my decision on this view.

42 The second respondent argued that there was no decision for the purpose of s 5 of the AD(JR) Act. There is force to this submission. The deemed abandonment arguably came from the text of O 69A r 13(1) in the absence of a contrary order or direction. However, it may be argued that the correspondence of the Deputy Registrar displayed a decision not to order or direct to the contrary. Whether this was "under an enactment" is another question. I do not propose to rest my decision on a view about this question.

43 In the light of the evidence, I prefer to base my decision in respect of the AD(JR) Act claim on the failure of Mr Croker, on the merits, to make out any substantive argument or any foundation for a substantive argument. On the evidence before me there is no basis for a claim that the Deputy Registrar:

(a) denied Mr Croker any aspect of procedural fairness;

(b) failed to follow procedures otherwise required by law;

(c) lacked jurisdiction or committed any jurisdictional error;

(d) improperly exercised any power by failing to take into account any consideration, let alone any consideration required by legislation or other law to be taken into account, or by exercising any power in bad faith, or by exercising a power in accordance with a rule or policy without regard to the merits, or by exercising any power in a manner so unreasonable that no reasonable person could have exercised the power in that way, or by exercising the power in an abusive way.

44 In short there is no foundation whatsoever under any of the claimed heads of review.

45 Others may have given Mr Croker more time. However, I see no basis to criticise the Deputy Registrar's conduct at all. The wide ranging, unarticulated and serious assertions of wrong-doing on the part of the Deputy Registrar are without any foundation.

46 Further, even if I be wrong in any regard above, I would grant no relief in the light of the available course which I proposed and about which Deputy Registrar Carlsund advised Mr Croker. In the light of an available method of overcoming his present circumstances in the Court which was seized of the matter, being a court superior to this Court in the federal hierarchy, a course deliberately considered and hitherto (for over one year) rejected, I would see no basis for granting any relief under the AD(JR) Act, even if some ground had been made out, which I cannot see.

s 39B of the Judiciary Act

47 The Deputy Registrar is undoubtedly an officer of the Commonwealth.

48 Certiorari is sought. Jurisdiction to grant it is not vested by s 39B of the Judiciary Act. I leave to one side whether it is within the Court's jurisdiction by reason of the operation of s 32 of the Federal Court of Australia Act 1976 (Cth). The Court has jurisdiction to grant an injunction: subs 39B(1). Such an order could be moulded to stand procedurally as a substitute for certiorari if otherwise available. I leave to one side whether this Court has power to order an officer of the High Court to do or not do anything.

49 The grant of remedies identified in subs 39B(1), if otherwise available, is dependent upon the existence of a lack of jurisdiction in, or jurisdictional error exhibited by, the officer. No such jurisdictional error has been demonstrated as even arguable. Further, to the extent that such remedies may be seen as discretionary, I repeat what I said in [46] above.

50 For the above reasons the application should be dismissed. I see no basis whatsoever for any resistance to an order for costs. The application has displayed no substantive merit at all. If Mr Croker had had legal advice, and if he had persisted with the proceedings, a question of indemnity costs would certainly have arisen. Dr Challenor has been put to further expense in a case which lacks merit entirely, and in respect of the substance of which another Court could have dealt with the matter substantively (and indeed may still be able to do so). In these circumstances, I will grant the second respondent leave to apply to argue for a special costs order.

51 Before concluding, it is appropriate to deal with one further matter. As I have said, a number of requests were made of the High Court by the Federal Court, at the instance of Mr Croker, for documents in Mr Croker's various cases in the High Court.

52 In mid-2002 Mr Croker asserted that he had a right to photocopy these documents free of charge by reason of subregs 2(1) and (4) of the Federal Court of Australia Regulations 1978 (Cth). I refused to accede to that request, in part because I was not convinced of Mr Croker's need to make multiple photocopies at the expense of the Court. Mr Croker sought leave to appeal from that interlocutory decision. On 10 September 2002 Beaumont J stood his application over to 4 October 2002 on the basis of the prematurity of the application. Beaumont J said the following:

In my opinion, Mr Croker's point is premature at this stage. I am not satisfied that Mr Croker can show a real need to photocopy any material. However, I propose to give him an opportunity to demonstrate this to the satisfaction of the docket Judge, who has control of the management of the litigation.

53 On 10 September 2002 (having read the reasons of Beaumont J) I said the following to Mr Croker at a directions hearing:

His Honour: I have read it [Beaumont J's reasons] Mr Croker. Mr Croker, I order you on or before noon on Thursday, 19 September, to identify by numbered sticker on the documents produced by the High Court which documents you wish to photocopy. I order that by noon on that day you file ... a statement setting out in respect of each document why you need to photocopy it including a statement as to whether it is proposed to tender the document. After 19 September I will re-visit your application for waiver of photocopying charges. Now, Mr Croker, have you any further request for any further documents from the High Court?

Mr Croker: Your Honour, not if compliance has been---

His Honour: You have seen the documents that have come from the High Court pursuant to a request which is the equivalent of a subpoena.

Mr Croker: Certainly, your Honour, but I haven't seen the last batch that has come down. I can do that today.

His Honour: Good, thank you. I further order that on or before 12 noon Friday 13 September, the applicant deliver to the Federal Court Registry any further request in writing for documents that he wishes to be made to the High Court of Australia. So that is this Friday. If you look at those documents today; if you want to frame a last request if it be the case that you think that there may be documents that have not been produced. We will deal with any documents that come, if there are any further documents to come, pursuant to that request in the fullness of time.

...

His Honour: Now, Mr Croker, if you deal with the documents in the Registry as I've indicated I'll re-visit the question of photocopying. I want to know which documents you want to photocopy, why you need to photocopy it including a statement as to whether you propose to tender the document.

That should produce, in effect, a bundle of documents that you wish to tender. It will also produce a list of documents that you wished to comment on, those two classes of documents probably being co-extensive I would have thought, would they not? You won't be commenting on it in an affidavit if the document is not being put into evidence?

Mr Croker: No, your Honour.

His Honour: That would be fair enough.

Mr Croker: It would be a list of facts stated, which would be relevant to the documents.

His Honour: Yes. You would put them in a bundle and you will then want to say something about them, will you?

Mr Croker: Yes, your Honour, or annex them to the affidavit.

[emphasis added]

54 Mr Croker did none of the things that he was ordered to do by 19 September 2002.

55 Nevertheless, Mr Croker appeared before Beaumont J on 4 October 2002, and submitted as follows (as appears form the published reasons of his Honour dated 4 October 2002):

On the tenth of September in the year two thousand and two the applicant demonstrated to the docket Judge that the documents would be annexed to the final affidavit of evidence and furnished annotations would be commentary to the documents.

The docket Judge stated that the requested documents would be better prepared in the way of a bundle of documents complimenting [sic] the affidavit and requested that all documents be marked with numbers [sic] stickers in the registry.

The request in the application was as follows:-

"(3) An Order that compliance with Federal Court of Australia Regulations 1978 (Cth) Reg 2 in regard to photocopying fees be adhered to;"

This request was based on several statutory standings and common law in allowing a litigant to copy documents at no charge that are held in the registry of the Federal Court of Australia and to prepare his case in accordance with statutory and other legal requirements.

As to date no direct answer has been given to the request for compliance and no direct answer to the request for leave to appeal has been forwarded.

It is alleged gross infractions of the applicants [sic] rights has to date been installed on the applicant and further gross infractions of the applicants [sic] rights seem to be pending it is requested that the first application be ruled on it merits and that the judgment of the docket judge by attended by sufficient doubt to warrant it being reconsidered by the Full Court and the substantial injustice that the docket judge has installed on the applicant be set aside.

As to the requested adjournment medical evidence has been forwarded to Deputy District Registrar stating time constraints caused by the pending medical procedure. If further consideration could be attended to the application for an adjournment and the matter stood over to after the twentieth day of October personal appearance and a more substantial argument would be filed.

56 Mr Croker made no attempt to identify the matters I ordered to be done. The matter was listed for hearing on 16 December 2002. On 26 November 2002 I caused my associate to send by email a letter in the following terms to Mr Croker:

His Honour has asked me to write to you in respect of the hearing of the above matter set down for Monday 16 December 2002 at 2.15 pm.

On 7 August 2002 an order was made that the cost of photocopying charged to the applicant by the Court in respect of the copying of documents produced upon subpoena or upon request to third parties be reduced to 50 cents per page. The applicant sought leave to appeal this order. The matter was heard by Beaumont J who said that the appeal was premature.

The matter came back before his Honour on 10 September 2002. On that day, his Honour reconsidered the application in order that he could consider further the application for copying at no cost and his Honour ordered that on or before 12 noon 19 September 2002, the applicant identify the documents produced by the High Court of Australia which he wishes to photocopy by placing numbered stickers on those documents, and that the applicant file and serve on the second respondent a statement setting out, in respect of each document, why the particular document needs to be photocopied and whether the applicant proposes to tender that particular document. By these orders, his Honour was leaving open for further consideration which of the documents produced by the High Court the applicant needed to photocopy. No steps have been taken by the applicant to identify any document pursuant to these orders.

The matter is set down for hearing on 16 December 2002. If the applicant wishes to make photocopies of any of the documents produced by the High Court for the purpose of preparing for the case or for tendering by way of evidence, he needs promptly to identify the matters referred to on 10 September 2002. His Honour will then decide whether copying is appropriate and whether any charge should be levied.

Thus, his Honour orders that:

1. On or before 4 pm 4 December 2002, the applicant is to identify the documents produced by the High Court of Australia which he wishes to photocopy by placing numbered stickers on those documents; and

2. On or before 4 pm 4 December 2002, the applicant is to file and serve on the second respondent a statement setting out, in respect of each document, why the particular document needs to be photocopied and whether the applicant proposes to tender that particular document.

If the applicant wishes to have documents photocopied, he will need to comply with these orders.

The question of photocopying is not merely a question of costs and fees. There is no entitlement to photocopying access as of right. The documents in question are of the High Court of Australia. If the applicant wishes to have photocopy access to them his Honour has indicated that the applicant will need to identify which documents are required to be photocopied.

No written submissions have been received from the applicant pursuant to order 4 of the orders of 10 September 2002. His Honour is prepared to extend the time for the applicant's written submissions to Wednesday 4 December 2002 at 4 pm. This is not a guideline. It is an order of the Court required to be complied with in relation to the hearing of this matter on 16 December 2002. His Honour draws the parties' attention to what he said on 10 September 2002, that if no written submissions are filed, the parties will be limited to brief oral submissions. His Honour does not propose to conduct the hearing on the basis of unconstrained oral submissions in circumstances where written submissions have not been filed contrary to orders of the Court.

His Honour notes that if the second respondent is to participate in the hearing, his Honour extends time for his filing and serving of written submissions to 4 pm 11 December 2002. His Honour will take it from the absence of evidence thus far filed by the second respondent that no evidence is to be filed. The second respondent will need to make an application for the filing of evidence if he so wishes.

The parties have liberty to apply on 3 days' notice in writing directed to the District Registrar.

I confirm that the matter is listed for hearing at 2.15 pm on Monday 16 December 2002.

[emphasis in original]

57 On 4 December 2000 Mr Croker filed a document in the Registry entitled "Statement Concerning Relevance of the Requested Documents from the High Court of Australia Registry" the terms of which were as follows:

It is alleged that all documents requested from the High Court of Australia Registry and received by the Federal Court of Australia Registry in matters concerning Clayton Robert CROKER are relevant as evidence in this Federal Court of Australia undertaking. There are two hundred and seventy five documents in three bundles that have been received by the Federal Court of Australia Registry.

The first bundle received by the Federal Court of Australia Registry consists of consist of [sic] document No. 1-139 received by the Federal Court registry on 14^th the [sic] day of May in the year two thousand and two.

The second bundle consists of document 140-209 received by the Federal Court registry on 21^st the [sic] day of June in the year two thousand and two.

And the third bundle consists of 210-275 received by the Federal Court registry on 1^st the [sic] day of August in the year two thousand and two. In total approximately 539 pages.

It is requested that all the above documents are tended [sic] to the Court on the 16^th day of December in the year two thousand and two and that photo coping [sic] fees are waiver [sic] so the applicant is not the only party with out [sic] a copy of the documents.

58 As can be seen the document did not comply with order 2 set out in the letter dated 26 November 2002 ([56] above).

59 Notwithstanding this failure, I made orders on 9 December 2002 the terms of which were communicated to Mr Croker by email in a letter that I caused my associate to send on 9 December 2002, which was in the following terms:

I refer to the "Statement Concerning Relevance of the Requested Documents from the High Court of Australia Registry" filed by the applicant on 4 December 2002.

His Honour has made orders on 9 December 2002 as follows:

1. Leave be granted to the applicant and the second respondent to be provided with copies, at no charge, of all of the documents produced by the High Court of Australia.

2. Neither party make any further photocopy of any of the said documents.

3. The parties have liberty to use the copy documents supplied only for the purpose of these proceedings, without a further order of a Judge of the Court of the High Court of Australia.

As these orders indicate, the Court will make those copies, and you will be notified when they are available for collection.

The Court has not yet received any submissions from the applicant as contemplated by the orders conveyed in the letter of 26 November 2002. In these circumstances the submissions of the parties will be restricted to oral submissions as referred to in that letter.

60 Mr Croker made no specific reference to these documents in oral address in support of his argument.

61 At no time at the hearing did Mr Croker put any submission that the course adopted by me concerning the documents had caused him any prejudice at the hearing, or in preparation for the hearing.

62 The orders of the Court will be:

(a) that the application be dismissed;

(b) that the applicant pay the respondents' costs;

(c) that the second respondent be granted liberty to relist the matter within 7 days to vary order (b); and

(d) that the parties not enter order (b) for a period of 7 days from the date of the making of these orders.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 3 February 2003

The Applicant appeared in person.
Counsel for the Second Respondent:	M R Speakman
Solicitor for the Second Respondent:	Abbott Tout
Date of Hearing:	20 December 2002
Date of Judgment:	3 February 2003