//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2007] FCA 529
Federal Court of Australia
2007-04-13
Anderson J, Mansfield J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This application was issued on 3 February 2007. It was not supported by any affidavit or statement of claim. Subsequently, on 21 February 2007, the applicant filed a lengthy affidavit. I directed that neither of those documents be served pending my further consideration of them. 2 On 21 February 2007, I raised with the applicant some concerns about the competence of the proceeding. I gave him leave to file such amended application as he may be advised, together with any further affidavit upon which he relied and a brief outline of his contentions as to why the Court has jurisdiction to issue the proposed orders, all by 21 March 2007. He has not filed any further documents. 3 For the reasons which appear, of my own motion, I dismiss the application.
4 The application is ostensibly made under O 54A of the Federal Court Rules and s 39B of the Judiciary Act 1903 (Cth) for a "Petition for Writ of Mandamus". It is in respect of a judgment of Anderson J in the Supreme Court of South Australia in Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank [2006] SASC 381, given on 19 December 2006. His Honour dismissed an appeal from the judgment of Judge Lunn, as a Master of that Court, given in the same matter on 10 May 2006: [2006] SASC 130. 5 The application, in addition says that the third respondent is joined "pursuant to the principles of vicarious liability indemnity in favour of the Supreme Court given by the State Government of South Australia." To state the basis of the claim against the third respondent is to demonstrate that it is untenable. The claim against the third respondent is dismissed. 6 The application asserts that reliance is placed upon the grounds stated "in the affidavits filed in this action and the statement of claim". There were no affidavits filed when the action was commenced, nor any statement of claim. There is no claim in the application other than under the heading "Claim for Interlocutory Relief". I interpret that as meaning a claim in the nature of an order calling upon the first and second respondents to show cause why orders should not be made in terms specified. The orders sought are as follows: 1. That a writ of Mandamus be issued by this learned court commanding the 1st to 2nd Respondents to deal with Bills of Exchange held in the Supreme Court of South Australia issued by Creditnet Bank and endorsed by the Managing Trustee of the Andrew Garrett Group of Trusts in accordance with; a. The Law of Contract, b. The Laws of Australia generally, c. Common Law, d. The Banking Act (C'th)(1959) and the duties of the paying bank. e. The Bills of Exchange Act (C'th)(1909) and in particular the obligations of "The Holder of the Bill in Due Course. f. The UN CITRAL Convention g. The Duty of Care owned by a Bank to its Customer and h. Banking and Financial Institution Law generally. Being International Bills of Exchange with the Serial Numbers 1. 61.755183 in the amount of AUD$600,000 2. 61.755207 in the amount of AUD$1,700,000 3. 61.722719 in the amount of AUD$5,000 2. That the respondents pay the costs of this application on a solicitor client basis. 7 On its face the application must be dismissed. This Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. That reflects the jurisdiction of the High Court under s 75(5) of the Constitution. From the heading of the proceeding (but not otherwise established by affidavit) the first respondent is the Registrar of the Supreme Court of South Australia. The second respondent is, of course, a Justice of the Supreme Court of South Australia. Neither is an officer of the Commonwealth. Nor is the Premier of the State of South Australia. It is not said that Anderson J in making his decision was exercising Federal jurisdiction in any event.
8 The subsequent affidavit of 21 February 2007 merely annexes a series of documents. The first is a "Notice for Specific Directions 'Payment to Suitor's Fund'" apparently filed in the Supreme Court action in which the two judgments referred to were given.
9 Paragraph 2 of that notice is in the following terms: That pursuant to the Terms of the Full Court dated 14th September 2004 in respect of Injunctive Relief over the property known as "Springwood Park" that the International Bill of Exchange No 61 75521 currently held in the Court Safe be presented by the Registrar of the Supreme Court to Westpac Bank where the account for the Fund is domiciled in respect of payment of $1,000,000 given in consideration for that injunction.
10 The subsequent annexures comprise copies of the reasons for judgment of Judge Lunn, and Anderson J, together with a copy of the notice of appeal from the decision of Judge Lunn, an apparently unexecuted notice of appeal to the Full Court of the Supreme Court of South Australia from the decision of Anderson J, dated 29 January 2006, an apparently unexecuted notice of appeal dated 9 January 2007 said to have been instituted in this Court from the decision of Anderson J, a further direction sought in the same Supreme Court proceedings, and (for some obscure reason) a copy of a list of authorities provided to a judge of the Supreme Court at an earlier hearing on 25 July 2005. The affidavit, and more particularly the annexures, do not provide any foundation to support the claim for the orders sought.
11 From the reasons for judgment annexed to the affidavit I discern the following. Supreme Court Action 127 of 2004 was commenced on 4 February 2004 by Andrew Garrett Wine Resorts Pty Ltd and by Averil Gay Garrett as registered proprietors of the property "Springwood Park". They sought to challenge the validity of one of two mortgages granted to National Australia Bank Ltd, and to have determined that the liability under the mortgages was only some $2.1m. The bank counterclaimed that further monies were owing to it, secured under the mortgages, totalling some $25.5m including for a liability of the applicant who was joined as a defendant by the counterclaim. Those issues have not come to trial. In the events which have happened, Andrew Garrett Wine Resorts Pty Ltd went into liquidation, and its liquidator discontinued the proceedings on 20 September 2005. Averil Gay Garrett was declared bankrupt. Her trustee has elected not to proceed with the claim. The counterclaim against the applicant, Averil Garrett has also been stayed following the bankruptcy of the applicant and of Averil Garrett: s 58(3) of the Bankruptcy Act 1966 (Cth). 12 On 26 July 2004, a judge of the Supreme Court ordered that the plaintiffs in that action give up possession of Springwood Park to enable the bank to sell it. An appeal from that order was brought to the Full Court of the Supreme Court of South Australia. That appeal was dismissed. On 4 November 2004, when reasons for judgment of the Full Court were published, the Court indicated that an application to stay the sale of Springwood Park "might" be entertained should an amount of not less than $1m be paid into Court, together with further support. As Anderson J indicated, that was no more than an intimation that a substantial amount of money would have to be deposited if such an application were to be made and to be seriously considered. In fact, no stay application was ever made by the applicant. Nor, it would seem, would he have the status to make such an application as he was not one of the registered proprietors of Springwood Park. 13 It then appears that the applicant produced to the Court on 25 February 2005 an International Bill of Exchange drawn on Creditnet Bank Internationale for $1.7m in favour of the National Australia Bank on the account of Evajade Pty Ltd. Accompanying that instrument were two notices of payment into Court in two separate Supreme Court proceedings. From the recital of facts in the judgments to which I have referred, the instrument was put into the Court's safe and not processed. 14 The proceedings before Judge Lunn followed the notice for specific directions brought by the applicant in this proceeding in the terms set out in [9] above. Judge Lunn ruled that the purported payment into Court was incompetent because it was made in respect of two actions in which there were different parties and without stating how much of the total payment was in respect of each action: see Supreme Court Rule 109.20 and Supreme Court Practice Direction 3(1)(a). His Honour also concluded that there was no obligation on the Registrar in any event to accept the payment of monies into Court by means of a Bill of Exchange, as it is not legal tender: see s 36(1) of the Commonwealth Reserve Bank Act (Cth) and s 16 of the Commonwealth Currency Act 1965 (Cth). The Registrar simply informed the applicant that the Bill would be held in the Court's safe pending directions from the judge then having conduct of the matter. On 25 February 2005, that judge directed that the Court would not allow the Bill to be paid into Court because it would involve the Court having to, in some way, trade the Bill. 15 Judge Lunn also observed that the endorsement of the Bill in favour of the applicant as "Director of Record" probably meant that the applicant was acting as a director of Andrew Garrett Wine Resorts Pty Ltd illegally, as he was an undischarged bankrupt: see s 206A of the Corporations Act 2001 (Cth). His Honour also noted that the applicant had no standing to have brought the application, not being a registered proprietor of the Springwood Park property and because his sole function in the proceedings was a defendant to the counterclaim of the bank, which counterclaim was stayed by operation of law. 16 It is in that context that one struggles to see any foundation for the orders sought in the application in any event. The grounds for those orders, as set out in [6] above, are obviously entirely misconceived, discursive and inappropriate. I shall not dignify them by going through them individually. Moreover, the particular Bills of Exchange referred to are other than the relevant Bill of Exchange which, apparently, is numbered 6175521 according to the Notice quoted in [9] above and is numbered 61755207 according to the application in this matter.. 17 I briefly refer to the annexure to the affidavit which is said to be a notice of appeal to this Court. Section 24 of the Federal Court of Australia Act 1976 (Cth) gives this Court appellate jurisdiction, relevantly, in such cases as are provided by any Act, in appeals from judgments of a single judge of the Supreme Court of a State: see s 24(1)(c). The applicant has not identified any enactment which provides for the applicant to have a right of appeal to the Full Court of this Court from the decision of Anderson J on the matters which his Honour addressed. The Court's records indicate that that document was presented to this Court for filing on 9 January 2007 and rejected as it did not disclose any basis for the Court's jurisdiction being invoked. 18 The proceedings are obviously incompetent. They must be dismissed. As they have not been served, there is no need for any order as to costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Counsel for the Applicant: The applicant appeared in person
Garrett
Bransbury
[2006] SASC 381
[2006] SASC 130