Croker v Samsung Electronics Co Ltd

On 22 July 2010 Fullerton J made orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) prohibiting Clayton Robert Croker, the plaintiff herein, from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act, and staying any proceedings instituted by him before the date of the order: Attorney General of New South Wales v Croker [2010] NSWSC 942.

A similar order was made in respect of proceedings in the Federal Court of Australia by Perry J in Soden v Croker (No. 2) [2016] FCA 15; (2016) 334 ALR 540 pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth).

The plaintiff by summons filed 7 December 2017 seeks this order:

This judgment concerns a preliminary determination under s 14 of the Act. It is not necessary for the applicant to be accorded an oral hearing for an application such as the present: Application by Bar-Mordecai [2013] NSWSC 1908 at [13]–[16].

Sections 14 to 16 of the Act provide:

Section 6 of the Act defines what constitute vexatious proceedings. That section provides:

On 2 July 2017, in contravention of the orders made on 22 July 2010, the plaintiff lodged an application in the NSW Civil and Administrative Tribunal against the present defendants without having obtained leave to do so. On 24 August 2017 the second defendant wrote to the Registrar of NCAT drawing attention to the orders made by Fullerton J on 22 July 2010, and asking that the application be dismissed.

On 14 September 2017 the Tribunal made an order dismissing the proceedings “by operation of s 13(3)” of the Act.

NCAT, of course, is not a court of pleading. However, the basis of the plaintiff’s claim can be found from three sections of the application headed “Agreement Details”, “Order/s Sought” and “Reasons for the Order/s”. Those sections of the application are as follows:

Under section 14(5) of the Act, the Court has a discretion as to the disposition of the application. There are no matters to be considered or guiding principles under that sub-section. However, s 15 provides for three situations where the discretion is circumscribed. If any of the circumstances enumerated in s 15(1) are found, the Court must dismiss the application. The restriction in s 16(4) is usually considered as applying if the second stage has been reached, that is, where leave has been given under s 16(1) to serve the proposed proceedings on any relevant person and such person has been heard.

Apart from the matters mentioned, the discretion should be exercised bearing in mind the purpose of the Act, without losing sight of the fact that from time to time even vexatious litigants may have legitimate claims that require the commencement of proceedings.

In the light of the prescriptive provisions of s 15(1), it is first necessary to consider whether any of the matters in that subsection obtain.

The affidavit filed by the plaintiff sets out the facts associated with the purchase and use of the phone including the alleged overheating, the contact the plaintiff has had with Samsung Australia, and the commencement and dismissal of the proceedings in NCAT. The affidavit identifies that Samsung Australia told the Plaintiff that it is not liable to provide service for international units.

The plaintiff’s affidavit suggests, but does not state, that the plaintiff purchased the phone and charger from suppliers outside Australia. The affidavit does not state if the plaintiff acquired the goods by way of an auction held on eBay. Those matters would impact on any potential liability of the proposed defendants under the Competition and Consumer Act 2010 (Cth) and, in particular, Schedule 2 to the Act being the Australian Consumer Law. It is not clear how, in those circumstances, either of the proposed defendants has any liability for the problems the plaintiff claims. I am not satisfied, therefore, that s 14(3)(c) has been complied with.

Attached to the plaintiff’s affidavit, but not referred to in it, was a list described as being “the previous cases are required from 1999 to date”. The list of cases appears to be all the cases brought by the plaintiff against various defendants together with three cases brought against him. That amounted to compliance with s 14(3)(b). However, the affidavit does not list any occasions where he has applied for leave under s 14. There is, therefore, no disclosure of which of the cases listed may have been brought with leave, nor occasions on which the plaintiff has sought, but been refused, leave. Section 14(3)(a) has not been complied with.

These failures to comply with s 14(3)(a) and (c) amount to substantial non-compliance with the sub-section, with the result that s 15(1)(a) requires the application to be dismissed.

Quite apart from the failure to comply with s 14(3), three other matters taken together would lead me to exercise my discretion against granting leave. The first is the matter discussed in [14] above. Without complete information about the purchase and the basis of the cause or causes of action, I cannot be satisfied that the plaintiff demonstrates a prima facie ground for proceedings against the proposed defendants.

Secondly, the Summons seeks an order that the plaintiff be given leave “to proceed” with the consumer claim in NCAT “or in the alternative to start the consumer claim in” this Court. In the first place, the claim in NCAT has been dismissed so it cannot be proceeded with. Further, the Act does not contemplate leave to continue with a claim commenced in contravention of the Act. Finally, it would be quite inappropriate to give leave to the plaintiff to make the claim in this Court when the subject matter involves goods purchased for less than $800 (see, for example Civil Procedure Act 2005 (NSW), S 146, and Uniform Civil Procedure Rules 2005 (NSW), r 42.34).

Thirdly, the reasons provided by the plaintiff on the NCAT application form for seeking an amount of $10,000 suggest that the claim is being instituted for reasons other than the seeking of legitimate compensation. That is a wrongful purpose, and in that way the proceedings are vexatious proceedings within the meaning of s 6(b) of the Act. That is also a significant factor when regard is had to the history summarised by Fullerton J in her judgment of the way that the plaintiff has misguidedly pursued proceedings.

I make the following orders: