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[2021] FCA 900
Federal Court of Australia
2021-08-03
Charlesworth J
Original judgment source is linked above.
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
ANDREW MORTON GARRETT, PERSONALLY AND AS TRUSTEE FOR THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES Applicant
order made by: CHARLESWORTH J DATE OF ORDER: 3 August 2021
CHARLESWORTH J 1 The Court has before it 18 originating applications filed by the applicant in late 2020. It is expedient to publish a single set of reasons explaining why all of the applications should be dismissed. 2 In each application the applicant seeks an order under s 37AT of the Federal Court of Australia Act 1976 (Cth) (FCA Act) granting him leave to institute a proceeding. The applicant requires that leave because he is a person against whom a vexatious proceedings order has been made in accordance with s 37AO(2) of the FCA Act: see FCA Act, s 37AQ(1). Reasons for making the vexatious proceedings order were published as Garrett v Commissioner of Taxation [2015] FCA 117; 147 ALR 342. They need not be repeated here. 3 This Court has dismissed nine previous applications for leave to institute a proceeding made by the applicant, namely: (1) an application made in 2016, dismissed for reasons published as Garrett, in the matter of Company One [2016] FCA 703; (2) an application made in 2020, dismissed for reasons published as Garrett, in the matter of application by Garrett [2020] FCA 1704; and (3) seven applications considered concurrently and dismissed for reasons published as Garrett, in the matter of various applications by Garrett [2020] FCA 1774. 4 The present applications were lodged for filing by the applicant on various dates between 27 November 2020 and 7 December 2020. They were not accepted for filing by a Registrar of the Court until 25 June 2021. The applicant is not responsible for that delay. The applications have been considered having regard to the circumstances persisting at the time that the initiating processes were lodged, and not at the later time that they were accepted for filing. At the time of lodgement, the applicant did not have the benefit of the reasons for judgment on the seven applications referred to in [3(3)] above, published on 10 December 2020. He did, however, have the benefit of the reasons for judgment referred to at [2], [3(1)] and [3(2)] above. 5 Section 37AR and s 37AS of the FCA Act provide: 37AR Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or (b) acting in concert with another person who is subject to an order mentioned in paragraph (a). (2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order. (3) The applicant must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under this section; and (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order. 37AS Dismissing application for leave (1) The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3). (2) The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding. (3) The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).
Reasons for dismissal 6 Each of the 18 leave applications is to be dismissed for three reasons. I consider each reason to be sufficient to warrant dismissal in each case. 7 First, the supporting affidavit in each case does not satisfy the requirements of s 37AR(3) of the FCA Act. In each case, the applicant has relied upon the same affidavit filed in action SAD 134 of 2016 (the 2016 affidavit) albeit with a different cover sheet attached. In Garrett, in the matter of various applications by Garrett [2020] FCA 1774 at [11] - [18] the Court explained why the 2016 affidavit did not satisfy the requirements of s 37AR(3) of the FCA Act. The same defects persist. In addition, the supporting affidavit in each of the present applications does not refer to the application for leave dismissed in Garrett, in the matter of application by Garrett [2020] FCA 1704 on 26 November 2020. 8 In light of the circumstances discussed at [4] above, for the purposes of determining the present 18 applications, I have not proceeded on an assumption that it was necessary for the applicant to have deposed in his affidavit to the fact that any one of the others had been "filed" at or around the same time. That is because no decision had been communicated to him as to whether any one of them had been accepted for filing for more than six months after they were lodged. Given the unsatisfactory delay, I have not regarded any one of the applications as having been "filed" as at the date of their lodgement, even if a different conclusion may be open by reference to the Federal Court Rules 2011 (Cth). It is sufficient to identify an instance of non-compliance with the requirements of s 37AR(3)(a), being that described at [7] above. 9 At the time that these applications were lodged, the applicant had the benefit of the reasons for judgment concerning the requirements in s 37AR(3) of the FCA Act and so ought to have appreciated the consequences of non-compliance with the requirements. In the circumstances I consider it neither necessary nor appropriate to afford the applicant any opportunity to substitute the affidavit with one that complies. 10 Second, by orders made on 13 July 2021, the applicant was afforded an opportunity to file written submissions in support of each application. The orders were brought to the applicant's attention by letter of the same date (now marked MFI-1). The applicant has not availed himself of the opportunity to file written submissions in any one of the proceedings. Rather, he has written to the Court in terms suggesting that he considers the Court and its judicial officers to be "bankrupt". The letter suggests that the determination of each of the applications should be delayed so that the applicant may engage Counsel to assist him to apply to have the applications removed to a court in another country. So far as I understand the applicant's letter (now marked MFI-2) it appears that he does not accept that this Court is the appropriate forum to hear and determine the applications that he has chosen to bring before it, and that he denies the authority of the Court to decide them. 11 By reference to the applicant's letter I am satisfied that each of the leave applications is one that has been commenced to harass and annoy the Court and each may be characterised as vexatious for that reason in and of itself. I arrive at that conclusion irrespective of whether there exists a genuine controversy between the applicant and any one of the proposed respondents to any one of the 18 applications. Even if there did exist a genuine controversy, I am satisfied that the substantive proceedings would themselves be conducted in a manner that would vex the Court and all of the respondents proposed to be joined and so constitute a vexatious proceeding. Section 37AS(2) of the FCA Act mandates that each of the 18 leave applications be dismissed on that alternate basis. 12 Third, there are a total of 78 respondents proposed to be joined in the 18 proposed proceedings, 14 of whom are proposed to be joined in more than one of them. That count does include parties described in terms that are capable of incorporating more than one person within a broadly defined class. The substantive proceedings sought to be commenced against the proposed respondents are legally incomprehensible in critical respects. It is not possible to identify a recognisable cause of action against any one of the proposed named respondents, nor is it possible to identify the facts upon which the applicant relies in each instance. It appears from the names of the respondents that the applicant seeks to join in the proceedings the persons he perceives to have acted against his interests in the past without identifying any or sufficient facts capable of demonstrating a prima facie case against any of one of them. The Court does not have the benefit of written submissions or an affidavit from the applicant that might assist the Court to understand the documents in any other way. For the purposes of s 37AS(2) of the FCA Act I am satisfied that the proposed proceedings are vexatious proceedings for that additional reason. In the absence of written submissions or an affidavit explaining the subject matter of each proposed proceeding, I do not consider it necessary to address the content of any of the proposed initiating processes with any more specificity. 13 The applications for leave are to be determined judicially with particular regard to the applicant's status as a self-represented litigant. The Court has particular regard to the nature of the vexatious proceedings order made against the applicant and the extra-ordinary obstacle that it poses to his ability to access justice in this Court. A careful assessment of each application must be made, having regard to the unusual restriction on the applicant's right to access justice for the adjudication of his rights and interests vis a vis any person in respect of any matter falling within the Court's jurisdiction. On that assessment, the Court's observations in connection with the number of proposed respondents, the incomprehensible nature of the proposed initiating documents and the content of the letter marked MFI-2 together tend against a finding that the applicant presently has a genuine claim warranting adjudication and resolution. 14 In 12 of the applications (actions SAD 112 of 2021, SAD 114 of 2021, SAD 115 of 2021, SAD 116 of 2021, SAD 117 of 2021, SAD 118 of 2021, SAD 119 of 2021, SAD 120 of 2021, SAD 121 of 2021, SAD 122 of 2021, SAD 123 of 2021 and SAD 124 of 2021), the applicant has filed a List of Documents. The list is in the nature of a lengthy index. The documents themselves have not been annexed. The affidavit filed in support of each application does not explain the use to which the "List of Documents" is sought to be put, whether on the particular application for leave or in the particular substantive proceeding that is sought to be commenced. The List of Documents filed in each of the 12 named proceedings is identical. The content of the List of Documents in each of the leave applications does not dissuade me from the view that the applications are themselves vexatious proceedings, nor from the view that the proposed proceedings would themselves constitute vexatious proceedings in the senses I have described above. 15 The Court may dismiss an application for leave under s 37AS of the FCA Act without affording the applicant an oral hearing, whether or not the applicant consents. As I have mentioned, the applicant has been afforded an opportunity to file written submissions but has declined to do so. In my discretion I consider it appropriate to dismiss each application without entertaining oral submissions from the applicant. As has been mentioned, the applicant's position is that the leave applications should be removed by an unspecified procedure to a court situated in another country. That submission would not assume any more force if it were to be made orally. 16 Finally, the Court has not overlooked an assertion in the applicant's letter that the applications cannot be dealt with by any justice of the Court having any prior association with "the Crown". I consider that assertion to be a mere allegation of apprehended or actual bias directed toward judicial officers within a class, without any proper factual foundation having been advanced for it. The letter does not otherwise provide any proper basis upon which I should recuse myself from determining the applications for leave, in accordance with the principles stated in Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337, nor does any proper basis for recusal otherwise arise on the materials themselves. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.
Ebner
Official Trustee in Bankruptcy