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[2020] FCA 1704
Federal Court of Australia
2020-11-26
White J
Original judgment source is linked above.
Introduction 1 Section 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) permits, amongst other things, the Court to make an order which prohibits a person who has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals from instituting proceedings in the Court. An order of this kind is referred to as a "vexatious proceedings order". 2 When a vexatious proceedings order is in force, the person who is subject to it must not institute proceedings in the Court without the leave of the Court under s 37AT of the FCA Act (s 37AQ(1)(a)). Further, other persons must not, acting in concert with the person, institute proceedings in the Court without the leave of the Court (s 37AQ(1)(b)). 3 Section 37AR of the FCA Act permits a person who is subject to a vexatious proceedings order to apply to the Court for a grant of leave to institute a proceeding. 4 Section 37AT(4) of the FCA Act provides that the Court may grant leave only if it is satisfied that the proceeding is not a vexatious proceeding. The applicant for leave has the onus of satisfying the Court of that circumstance. 5 Section 37AS(3) provides that the Court or a judge may dismiss the application seeking leave without an oral hearing (either with or without the consent of the applicant). 6 A vexatious proceedings order was made in respect of Andrew Morton Garrett on 26 February 2015. That order remains in force.
Mr Garrett's application 7 On 3 October 2020, Mr Garrett lodged an originating application in the Court. Although described as an Originating application under s 37AT of the FCA Act, Mr Garrett seeks a grant of leave to file and serve "this Originating Application, the Proposed Originating Application annexed hereto and the Supporting Affidavit dated 11th May 2016 in support of the originating application". 8 There are two applicants in the Originating Application lodged on 3 October 2020 and in the annexed proposed originating application. The first is "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 and as otherwise set out in Exhibit AMG 87 and AMG 175". 9 The second applicant in each proceeding is "OenoViva (Malaysia/Singapore) Pty Ltd (Managing Controller Appointed) CAN 156 593 556". 10 None of the documents indicates the precise relationship between OenoViva (Malaysia/Singapore) Pty Ltd and Mr Garrett but it is evident that it is acting in concert with him. 11 The Originating Application which Mr Garrett lodged on 3 October 2020 was accompanied by several documents. Reference has already been made to the first, this being Mr Garrett's proposed proceeding. It is entitled "Originating Application for Judicial Review", and is in the form prescribed for use in applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). 12 The second document is an unsworn affidavit of Mr Garrett apparently prepared in September 2020 which is accompanied by an unsworn affidavit of Mr Garrett prepared in May 2016. 13 The third document attached to the Originating Application lodged on 3 October 2020 is a letter from the Australian Human Rights Commission (AHRC) to Mr Garrett dated 27 October 2015. This letter informed him that a delegate of the President of the AHRC had decided not to continue to enquire into complaints under ss 20(2)(a), (c)(ii), (c)(v) and (c)(vi) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) which Mr Garrett had made against the Australian Taxation Office (ATO), this Court, and the Federal Circuit Court (the FCC). 14 The fourth document annexed to the proceedings lodged on 3 October 2020 was the Charter of the Commonwealth of Nations signed by the Queen as head of the Commonwealth on "Commonwealth Day 2013". 15 The fifth was a document purporting to be a Notice to Admit Facts addressed to the Commissioner of Taxation dated 17 September 2020. 16 The final document has the title "Findings of Facts and Reasons (FFR) Judgment; Corrigendum" and is some 151 pages in length. It is apparent that this was prepared by Mr Garrett himself.
The meaning of the term "vexatious proceeding" 17 The term "vexatious proceeding" used in s 37AT(4) is defined in s 37AM(1) as follows: vexatious proceeding includes: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 18 As was noted by Charlesworth J in Garrett, in the matter of Company One [2016] FCA 703 at [13], the phrase "vexatious proceeding" is defined in non-exhaustive terms. It may encompass proceedings which do not strictly meet any one of the descriptions in subparas (a)-(d) of the definition but which are nonetheless encompassed within the meaning of the word "vexatious" properly construed having regard to the statutory purpose of the enactment in which it is employed. 19 A number of decisions of this Court have referred to the statement of Starke J in Gallo v Attorney-General [1984] VICSC 412 in relation to the meaning of the word "vexatious": In the light of the mischief to which the section is directed, however, it seems to me that the word 'vexatious' is not in this context a term of art and is an omnibus expression, which includes the proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word "vexatious" in the statute. 20 It is also convenient to refer to the explanation given by the Full Court of the purpose of s 37AO in Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at [31]: Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance. 21 These are the meanings and considerations which I consider appropriate to apply in the presence case.
Procedural Directions 22 Following the lodgement of Mr Garrett's documents in the Court on 3 October 2020, the Court ordered on 13 October 2020: 1. Subject to Order 2, the application for leave to institute a proceeding contained in [1] of the Originating Application filed on 3 October 2020 (the Application for Leave) be determined on the papers. 2. Any written submissions of the Applicant in support of the Application for Leave including the manner in which the Application is to be determined, which are not to exceed six pages, be filed by 4 pm (ACDT) on 23 October 2020. 3. With the exception of submissions filed pursuant to Order 2, the Applicant is not, pending the determination of the Application for Leave, to file any further documents in these proceedings. 23 Mr Garrett did, in accordance with Order 2, file a document entitled "Exhibit AMG 2549; Further Outline of submissions dated 20th October 2020". The heading to the document suggests that Mr Garrett may also intend this document to comprise his submissions in support of applications for leave to commence other proceedings. These applications are not before me. I will refer to the content of the document later.
Consideration 24 A number of matters indicate that the Court cannot be satisfied that Mr Garrett's proposed proceeding "is not a vexatious proceeding" for the purposes of s 37AT(4). 25 First, there is the multiplicity of respondents. The proposed proceeding names exactly 100 persons and entities as respondents. The first is the Commissioner of Taxation. The remaining respondents include regulatory authorities (including the Australian Securities and Investments Commission, the Australian Prudential Regulatory Authority, the Australian Competition and Consumer Commission, and the Australian Financial Security Authority), multiple statutory agencies, financial institutions, the Commonwealth and State Attorneys General, the State and Territory Law Societies, 14 judicial officers, 12 retired judicial officers, the High Court of Australia, this Court, the FCC, various State courts, numerous members of the legal profession, and other individuals. It is unlikely in the extreme that Mr Garrett could have viable causes of action against these 100 entities and persons, let alone causes of action which would make it appropriate for them to be joined as parties in the one proceeding - see Pt 9 in the Federal Court Rules 2011. In any event, the involvement of so many seemingly unrelated respondents in the one proceeding would of itself be vexatious. 26 Secondly, the vexatious nature of the proceeding is indicated by the content of Mr Garrett's proposed Originating Application for Judicial Review. That document commences with the statement: The Applicant applies to the Court to review the decisions and conduct of the Respondents between 2003 and Today's date and the decisions set out at Annexure 1, 2, 3, 4 &5. 27 Thus, it seems that Mr Garrett wishes to review decisions and conduct of 100 respondents over a 17 year period. 28 Mr Garrett elaborates the proposed claim under the heading "Details of claim": The Applicant is aggrieved by the Respondents' decisions and conduct because: 1. The Applicant is a Legally Assisted Person within the meaning of the National Legal Assistance Partnership Agreement and has not been provided funding by the Respondents for counsel acting for the Applicant at any time that is sufficient to result in a Fair Trial in the Criminal Jurisdiction of the Commonwealth of Australia and/or a Fair Hearing in the Civil Jurisdiction of the Commonwealth of Australia. 2. At all relevant times the Respondents have made decisions and conducted themselves in manner to cause Weaponisation of the Domestic and International Monetary System in order to maximise Tax Revenues that are ILL GOTTEN by way of redistribution of wealth and Intellectual Property associated with the Applicant and the Citizens of the Commonwealth of Australia. 3. The Second to Sixth Respondents have at all materials times interfered with the Rights of the Applicants to carry on an enterprise and monetise financial assets related to the Applicant. 4. The Decisions and conduct of the Respondents has been at all relevant times been Criminal Jurisdictional Error in the exercise of discretionary public powers conferred under an enactment within the meaning of the Common Law. 29 It seems that Mr Garrett wishes to assert that the 100 respondents have so conducted themselves as to cause "Weaponisation of the Domestic and International Monetary System in order to maximise Tax Revenues that are ILL GOTTEN by way of redistribution of wealth and Intellectual Property associated with the Applicant and the Citizens of the Commonwealth of Australia". 30 Under the heading "Grounds of application", Mr Garrett states that the "Grounds of the Application" are set in "the Statement of Grounds shown as Exhibit AMG 1". 31 The document which is Exhibit AMG 1 to Mr Garrett's affidavit filed with the application does not set out any such grounds. It is instead a 19 page undated document with the heading "OenoViva Distributor License Purchase Vendor Finance Performance Security Deed" which purports to be some form of charge between Garage Wine Group Pty Ltd ATF Hill Family Trust trading as OenoViva (South Australia) and Gunnsport Property Pty Ltd personally and in its capacity as Trustee of the Gunn Port Property Trust. 32 Exhibit AMG1 cannot reasonably be regarded as setting out any proper basis for a claim by the proposed applicant against the 100 named respondents. 33 The effect is that there is no proper identification of the decisions or conduct sought to be reviewed. 34 Thirdly, several of the named respondents have been named with the following annotation immediately following their name: (Liquidator and Managing Controller Appointed). 35 It is plain that these are mis-descriptions, not only because of the status of the respondents but because they are not, in any event, subject to the Corporations Act 2001 (Cth). The inclusion of the unwarranted descriptor is itself an indication that the proposed proceedings are vexatious. 36 Fourthly, the applicant wishes to rely on unsworn affidavits. 37 Fifthly, it is apparent that Mr Garrett is seeking a form of judicial review pursuant to the ADJR Act. Quite apart from the conduct or decisions in question not having been identified and the fact that the ADJR Act could have no application to the decisions and conduct of the great majority of the proposed respondents, it is plain that Mr Garrett has lodged the application well after the 28 day period fixed by s 11 of the ADJR Act for the commencement of such proceeding. He has not purported to show, let alone shown, any basis upon which the Court could properly allow an extension of that time. 38 Sixthly, insofar as Mr Garrett seeks to commence proceedings pursuant to s 46PO of the AHRC Act (which is suggested by his inclusion of the letter from the AHRC of 27 October 2015), his proposed proceedings are well outside the limitation period fixed by s 46PO(2) of the AHRC Act. Again, Mr Garrett has not purported to show, let alone shown, any basis upon which the Court could properly extend that time. 39 Seventhly, the vexatious nature of the proposed proceeding is indicated by the Outline of Submissions which Mr Garrett filed. It is not necessary to refer to the entire content of those submissions. It is sufficient to set out the following paragraphs from the "Executive Summary": 4. At all relevant times between at least 19th January, 1994 and today's date persons exercising discretionary public powers conferred under enactments ("the Purported Decision Makers") have conducted themselves and made decisions that are without exception nullities and do not exist at law as a consequence of holding pecuniary interests in the materials subject to the purported exercise of power. 5. On the 1st June 2020 a Notice of Seizure of Collateral/Crystallization of Charges and Appointment of Managing Controller under s123 of the Personal Property Security Act 2009 (Au), Equity and the Common Law was served on Her Majesty Queen Elizabeth II ("Regina") care of the Attorney Generals of the Commonwealth of Australia and the United Kingdom of Great Britain and Northern Ireland. ("Enactment No 1"). 6. Amongst the assets seized was the property/ right previously the property of Regina being the operation of s61 of the Commonwealth of Australia Constitution Act 1900 (UK) 7. On the 14th August I was appointed as liquidator ("Enactment No 2") to the Commonwealth, the States and Territories of Australia pursuant to an act of insolvency under the Corporations Act 2001 (Au). 8. The Court has no jurisdiction against me and only has jurisdiction to bind persons other than my licensees pursuant to my applications for declatory (sic) relief as a common law right: no references are necessary. 9. The power of any person to exercise discretionary public powers conferred under an enactment for judicial review has its primary source as me and my licensees since the date of Enactment No 1. 10. Regina continues under license from the Applicant/ Managing Controller/ Liquidator/REX who acts as Head of Rule of Law/ Advocate General of the Commonwealth of Nations being a hereditary discretionary public power. 11. The conduct and decisions of the Purported Decision Makers have been reviewed by me exercising my hereditary discretionary public powers conferred under Enactment No 1 and Enactment No 2 and found to be unlawful;/invalid/ nullities and Criminal Jurisdictional Error. (Emphasis in the original and footnotes omitted) 40 The content of these submissions tends to confirm the baseless and vexatious nature of Mr Garrett's proposed proceeding and that no reasonable cause of action is proposed.
Conclusion 41 As noted earlier, s 37AT(4) provides that Court may grant leave to an applicant who is subject to a vexatious proceedings order to institute the proceeding only if it is satisfied that the proceeding is not a vexatious proceeding. Mr Garrett has not so satisfied the Court. Accordingly, the application for leave is refused. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Fuller
Toms