Croker v Commissioner of Taxation for the Commonwealth [2003] HCATrans 542 (12 December 2003)

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Croker v Commissioner of Taxation for the Commonwealth [2003] HCATrans 542 (12 December 2003)

Last Updated: 18 December 2003

[2003] HCATrans 542

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S455 of 2002 and S147 of 2003

B e t w e e n -

CLAYTON ROBERT CROKER

Applicant

and

COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 11.38 AM

Copyright in the High Court of Australia

MR C.R. CROKER appeared in person.

MR K.P. SMARK: May it please the Court, I appear for the respondents in both matters. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Croker.

MR CROKER: Your Honour, is there any preference you would rather hear these matters, or as they are listed, or I can make general applications on the pair of them if that suits - - -

GUMMOW J: I think it would be better if you dealt with them together.

MR CROKER: All right, your Honour. I think that might be a wise move. Your Honour, the applications come, which would seem on the face of it - - -

GUMMOW J: Now, you have had some success with two bankruptcy notices, have not you?

MR CROKER: Yes, your Honour, actually of which yourself and Justice Kirby dismissed an application for a subpoena for the records of a respondent in one of the matters in 1999. After the matter was heard, your Honour dismissed the application with costs. The Commissioner after that issued two bankruptcy notices, one to recover costs in the Supreme Court of New South Wales, and also the Supreme Court of New South Wales Court of Appeal, and also for costs in the High Court of Australia.

GUMMOW J: That was another notice, was it?

MR CROKER: Yes, your Honour, that was two notices. Both the notices were found to be defective, one by the Federal Magistrates Court, which was involving the Supreme Court and the Court of Appeal; the other one was found to be defective on appeal to the Full Court of the Federal Court, which is - - -

GUMMOW J: That was the High Court-based costs order.

MR CROKER: That was the High Court application, your Honour. Your Honour, in both matters there was argument as to whether costs should be awarded, and whether if costs followed the event, and it would seem to be that the appeal looks more likely that it comes on a basis of costs on discretion of the Court, your Honour, but I would try to persuade your Honours that it is not really coming on a discretion of the Court, as one would think, that it is more coming on from a value that there is an ability of a court to have a discretionary power but not to be discriminative against who or what they will cost to, and I would like to emphasise the difference on the two, your Honour.

Your Honour, on the first matter which was the Supreme Court Court of Appeal matter, the registrar of the Federal Magistrates Court ordered a modest sum of $100 for costs in that matter, and argued that a self-litigant was not one that was to be awarded costs even with a paralegal degree, and that a solicitor only had the ability to be awarded costs.

GUMMOW J: That is the one that went to Justice Madgwick in the Federal Court. Is that right?

MR CROKER: Yes, your Honour. Justice Madgwick actually extended his application or - - -

GUMMOW J: He was, as it were, exercising the Full Court jurisdiction, even though there is only one of him?

MR CROKER: Yes, your Honour, but it is by Federal Magistrates rules that - - -

GUMMOW J: Yes, we understand that. The other one did have a bench of three, did not it?

MR CROKER: Yes, your Honour, a Full Court. Justice Madgwick relied on the Statute of Gloucester and that it was - - -

GUMMOW J: He did better than that, he relied on Cachia v Hanes, did not he?

MR CROKER: Yes, your Honour.

GUMMOW J: In [1994] HCA 14; 179 CLR 403?

MR CROKER: Yes, your Honour, that was in 1994. My friend was actually for the appellant in that matter. He might be able to help you out more with that. In 1995, your Honour, there was an Australian Law Reports Commission report that was issued, and it was one year after the Cachia v Hanes case in the High Court which actually gave extensive recommendations as to litigants in person and unrepresented litigants and also lay litigants that they should on an equity ground receive their costs if they are successful in their litigation.

Your Honour, there has been a significant change in legislation in England in 1975 which gave a litigant in person the ability to recover costs up to the amount that a solicitor would actually also recover. The High Court in Hong Kong has adopted the same practice as the Supreme Court Rules in England, and it is not exactly verbatim, but is very close to that of the English Supreme Court Rules, or the litigant in person – excuse me, I just cannot remember that Act off by – it is the Litigants in Person (Costs and Expenses) Act 1975 (UK). Your Honour, there is also Canada which has taken on a stance, not through statutory measures, but by common law or judge-made law - - -

GUMMOW J: No, by the Charter?

MR CROKER: Yes, by the Charter which it was found that it was inequitable grounds for an unrepresented litigant not to be excluded from the award of costs. My submission on that is that the Commonwealth influenced countries are adopting that a litigant person should be regarded as an equal party to the proceedings, and if successful should be awarded costs in circumstances where they are justified up to the amount that the respondent was successful or a solicitor or a legal practitioner would receive, and if not more if necessary, your Honour.

Your Honour, they would be my submissions on the equitable grounds on where costs should be awarded to a successful party. The other – or in the alternative, your Honour, I would take you to the High Court Rules, which is rule - - -

GUMMOW J: That cannot apply in the Federal Court.

MR CROKER: That cannot apply in the Federal Court. Your Honour, if there was a judgment in the High Court which actually announced that it was possible for that to be successful, that would be binding on the inferior court, would it not?

GUMMOW J: They have their own rules, the Family and the Federal Court.

MR CROKER: So your Honour you could only say that an application which on its first instance brought to the court – the High Court - - -

GUMMOW J: What I am saying to you is that the Family Court and the Federal Court have their own rules.

MR CROKER: Yes, your Honour, but obviously the High - - -

GUMMOW J: If the rules have the same language as the High Court Rules that would be another question, but if they do not, well, they do not.
The High Court Rules do not apply of their own force in any other Federal Court.

MR CROKER: Yes, but the High Court is the pinnacle of the appellate justice system, your Honour, in any.....or a judgment from the High Court is binding on the inferior courts - - -

GUMMOW J: A judgment about what - - -

MR CROKER: What I am attempting to express, your Honour, in saying if there was a judgment from the High Court that expressed the High Court Rules were binding, or actually exercise the High Court Rules, then that judgment could be used as an authority to bind the inferior courts. That would be my approach. I think that would be a fairly logical - - -

GUMMOW J: It is not mine.

MR CROKER: There is a difference of opinion. Your Honours, I do not know if you have had a chance to have a look at the rule, but it obviously states that if there is an application which is wrongly defended, which my submission is that the respondent – my learned friend has been quite defective in the administration and it has been proven by the Federal Magistrates Court and also the Federal Court, then there is a responsibility for the offending party to pay proper costs.

Your Honour, under that application, now the matter is in the High Court, one would say the High Court would be binding – bound by the rules and would see that the Commissioner pays the costs of the applications. There are special circumstances, your Honour. There is disability involved, and the cases wrongly defended on both occasions. The Commissioner has made no attempt to compensate for his defective administration up to date.

I would also say, your Honour, that the special leave – actually the rule that I was taking you to in the High Court Rules has only been amended, I think, in 1968, and the practice and procedure has not really been able to be followed because of the later instalment of the special leave applications which was not until 1986, so there has been quite a lengthy gap in between the – of actually the insertion of the special leave applications and the rule that was last amended in 1968. Your Honour, I do not think that I could really express any more on the point, but I would say that would be my two main principal arguments.

GUMMOW J: We do not need to call on you, Mr Smark.

We are not satisfied that there are sufficient prospects of success in any application to reopen the decision of this Court in 1994 in Cachia v Hanes [1994] HCA 14; 179 CLR 403, nor in respect of either application for special leave are there otherwise reasonable prospects of success. Accordingly, in each matter the application is refused and must be refused with costs as sought.

AT 11.49 AM THE MATTERS WERE CONCLUDED