Garrett, in the matter of Oenoviva Capital Resources [2021] FCA 976

1. The applications be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The applicant is a vexatious litigant. An order has been made that requires him to obtain leave to institute any proceedings in this Court. He seeks leave to commence four proceedings. The approach to be adopted in considering such applications was explained by Charlesworth J when determining other applications by the same applicant in 2016: Garrett, in the matter of Company One [2016] FCA 703 at [8]-[20]. 2 Mr Garrett's originating applications seeking leave were filed at or about the time of 18 other applications. Each of those applications was dismissed for reasons given by Charlesworth J on 3 August 2021: Garrett, in the matter of various applications by Garrett [2021] FCA 900. 3 An order must be made dismissing the applications if the Court or a Judge considers the proceeding is a vexatious proceeding: s 37AS of the Federal Court of Australia Act 1976 (Cth). The term 'vexatious proceeding' is defined in s 37AM as including: (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. 4 The proposed proceedings are incomprehensible. They contemplate the involvement of numerous parties. They would be productive of serious and unjustified trouble and harassment if they were allowed to proceed. It would be manifestly unfair and fundamentally unjust to inflict upon any of the many proposed respondents identified by the applicant the task of responding to them. 5 The following descriptions of each of the proposed proceedings is not complete. It is given to illustrate the nature of the proposed proceedings and to provide the basis for the descriptions of them that already have been stated. Much more supporting detail to the same effect could have been provided. 6 The proposed proceedings in SAD 109 of 2021 would seek declaratory relief in respect of the affairs of a number of companies. The materials contain a list of 30 proposed respondents. It appears that Mr Garrett claims to be appointed as a controller of the companies. He seeks orders requiring the opening of bank accounts and orders restraining the companies from barring his access to their premises. It is not possible to discern from the proposed affidavit in support of the application any coherent narrative or basis for the claimed relief. The affidavit appears to concern events which are said to have taken place in 2016. There is no explanation for the delay between then and now. 7 The proposed proceedings in SAD 110 of 2019 would seek relief against the judges and masters of the District Court of South Australia presiding in proceedings involving Mr Garrett. The proposed grounds are set out in an annexure that complains in the most general terms about the inadequacies of the consideration given to, and procedures followed in the course of the consideration of, various unspecified applications. It uses the language of prerogative writs but does not articulate any recognisable particularised claim referrable to claims of that kind. It provides no indication as to how any such relief might be sought in this Court. It contains extracts from what has occurred in various proceedings in other courts. It seeks orders that would direct the manner in which proceedings in this Court would be convened by the Chief Justice and thereby seek impermissibly to control the administration of the Court. The proposed application names more than 30 respondents (although a separate list of respondents indicates 100 separate respondents). The reason for the joinder of the various named parties is impossible to discern. 8 The proposed proceedings in SAD 125 of 2021 adopt a similar form to those contemplated by SAD 110 of 2019. However, they appear to be principally directed to decisions made by Charlesworth J of this Court. It too names more than 30 respondents, the reason for which is impossible to discern. It also includes a copy of the report of the Joint Standing committee on Foreign Affairs as to whether Australia should join the 'Global Magnitsky movement'. 9 The proposed proceedings in SAD 129 of 2021 would seek to commence proceedings against some 11 respondents including the Australian Government Solicitor, the Australian Commissioner for Taxation, the Registrar General of South Australia and the Registrar of Deeds of South Australia. The affidavit in support of the application appears to raise concerns as to the interlocutory steps being taken in the conduct of criminal proceedings in the District Court of South Australia. There is no hint as to the jurisdiction of this Court that is proposed to be invoked in seeking to complain about those steps. 10 Each of the applications raises complaints about decisions being made in relation to the availability of legal aid funding for the conduct of the defence of criminal proceedings brought against the applicant. The proper forum for raising concerns in relation to the funding of a criminal defence is the Court in which those proceedings are being prosecuted and any Court to which appeals in respect of those proceedings may be brought. It was not apparent how it was said that such matters could be scrutinised by this Court. 11 Therefore, it is not possible to discern readily from the content of the proposed proceedings any alleged basis for a claim such as an alleged breach of rights or interests or the elements of a cause of action. The reservation to the vexatious of an opportunity for commencement of proceedings with leave is designed to preserve an avenue to the Court, but it is an avenue that comes with particular responsibilities. 12 The applicant for leave bears the responsibility to demonstrate that there is a proper subject matter for competent proceedings. This is especially so where past behaviour by an applicant has resulted in the making of a vexatious proceeding order. It is not for the Court to trawl through voluminous materials in search of that which it is the burden of any applicant to disclose. 13 The proposed proceedings are so plainly both vexatious and an abuse of process that no purpose would be served in convening an oral hearing to consider the application for leave to commence them. To allow them to be commenced would both oppress the proposed respondents and bring the administration of justice into disrepute. Therefore, each of the applications must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.