Case: Croker v Commissioner of Taxation [2005] FCA 127 ; (2005) 145 FCR 150
Outcome: referred to
The Commissioner issued three bankruptcy notices against Mr Croker. Mr Croker challenged these notices in the Federal Court and was successful in having each set aside. One such notice was set aside by the Full Federal Court because it was founded upon an award of costs by the High Court of Australia, for which a judgment debt could not be validly registered in a local court: see Croker v Federal Commissioner of Taxation (2003) 52 ATR 226. The second notice was set aside because the amount claimed was greater than the original award of costs against Mr Croker, since it included costs of registration of the judgment and interest: see Croker v Commissioner of Taxation [2005] FCA 127 ; (2005) 145 FCR 150. The third notice was set aside by consent because it included two judgments in the same notice, contrary to legislative requirements. 11. The Respondent well knew or should have well known that the commissions of bankruptcy and affidavit's [sic] in support of those commissions of bankruptcy therefore were made, falsely and maliciously and without reason and probable cause. 7 Mr Croker also alleges that the Commissioner has violated the Constitution (see pars 12 and 13), that the Commissioner has violated Mr Croker's constitutional right to procedural fairness (see pars 14-17), and that this involves a tortious interference with Mr Croker's constitutional rights (pars 19-21). Mr Croker says that he has exhausted his extra-judicial remedies in relation to the conduct of the Commissioner and asks the Court to provide redress for the tortious interference with his constitutional rights. THE COMMISSIONER'S SUBMISSIONS 8 The Commissioner submits that this Court has no jurisdiction to hear Mr Croker's claims. Whilst the Mr Croker alleges Court has jurisdiction pursuant to the Federal Court of Australia Act 1976 (Cth), the Bankruptcy Act 1966 (Cth), the Judiciary Act 1903 (Cth) and the Constitution , the Commissioner submits that these statutes do not confer jurisdiction upon the Federal Court to grant the relief sought. 9 Alternatively, the Commissioner submits that the proceedings should be struck out on the basis that they constitute an abuse of process, that they fail to disclose any reasonable cause of action, and have a tendency to cause embarrassment. The Commissioner submits that these proceedings re-agitate issues which were raised in the earlier proceedings relating to the bankruptcy notices, namely the entitlement of the Commissioner to issue the bankruptcy notices and a claim by Mr Croker for damages in relation to defective administration: see Croker v Federal Commissioner of Taxation [2005] FCA 127 ; (2005) 145 FCR 150 at [19] - [20] . The Commissioner submits these proceedings are accordingly an abuse of process. 10 The Commissioner submits that no cause of action is contained in Mr Croker's application. In particular, no duty of care is identified, nor are details of the content of any such duty provided, nor is there any assertion of a breach of duty or details of damage sustained by Mr Croker. The Commissioner refers to the two possible causes of action which are suggested the Mr Croker's application, namely the tort of malicious prosecution and the tort of misfeasance in public office. The Commissioner states that a tort of malicious prosecution could not be made out because there have been no proceedings instituted by the Commissioner against Mr Croker. In relation to any tort of misfeasance in public office, the statement of claim and affidavits of the applicant do not contain the material facts upon which such a suit must be founded. 11 In respect of embarrassment, the Commissioner submits that the entire pleading is embarrassing and confusing. The Commissioner refers to the terminology contained in the statement of claim such as "violation of the Constitution ", "violation of right to procedural due process protected by the Constitution " and "exhaustion of administrative remedies".