Plaintiff v Defendant

37 In June 2014, Mr Garrett commenced proceedings seeking judicial review in respect of a decision of a delegate of the Legal Services Commissioner: Garrett v Legal Services Commissioner.[39] The proceeding was dismissed by Derham AsJ upon an application by the defendant pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005.[40] His Honour concluded that Mr Garrett's application had been brought out of time without any satisfactory explanation for the delay, save for Mr Garrett's contention that he was 'busy with other matters'. His Honour also concluded that there was no real prospect of the application for judicial review succeeding.[41] Derham AsJ also concluded:

Mr Garrett, by his own admission, seeks to use this proceeding for the collateral purpose of assisting his claim for compensation from the fidelity fund. That is not a proper purpose for the judicial review of the decision of the defendant.[42]

38 This finding supports a conclusion that the proceeding was a vexatious proceeding as defined in s 3 of the Vexatious Proceedings Act. The proceeding was commenced for a wrongful purpose, namely the collateral purpose of assisting Mr Garrett's claim for compensation from the fidelity fund.

39 In July 2014 Mr Garrett instituted a proceeding seeking judicial review in respect of a decision of a manager of the Legal Services Board: Garrett v Legal Services Board.[43] The Legal Services Board made application pursuant to O 23 of the Supreme Court (General Civil Procedure) Rules 2005 for the proceeding to be dismissed. Mukhtar AsJ granted this application. His Honour concluded:

For the reasons that have been advanced on behalf of the Board, this claim is misconceived, is doomed to fail, and there is no useful purpose in allowing it to proceed.[44]

40 In addition to striking out the proceeding, Mukhtar AsJ concluded that an affidavit filed by Mr Garrett was 'scandalous and offensive' and ordered it to be removed from the court file.[45] The proceeding was therefore vexatiously conducted within the meaning of s 29(2)(a) of the Vexatious Proceedings Act.

41 On 2 March 2015, Mr Garrett made an application pursuant to s 4 of the Administrative Law Act 1978 to review a decision of the Legal Services Board to reject a claim he made on the fidelity fund. On 25 March 2015, Mukhtar AsJ ordered exhibits to an affidavit filed by Mr Garrett sworn 2 March 2015 be removed from the court file and placed in a sealed envelope and marked 'Not to be opened without orders of the court or consent of the Legal Services Board or the Legal Services Commissioner'.[46] His Honour made this order because the exhibits contained scandalous and irrelevant material.[47]

42 His Honour ordered that Mr Garrett pay the costs of the Board's application for the removal of the offending material from the court file. His Honour's ex tempore statement of reasons includes the following:

The order for costs was made for the following reasons. First, because the Board's application was in the Court's view wholly justifiable. Secondly, because there was no reason to depart from the ordinary rule that costs follow the event. Thirdly, costs of this application in the circumstances are for a discrete matter and need to be isolated. Fourthly, the costs were made payable forthwith having regard to the Court's earlier plain order that such material was scandalous and offensive, and Mr Garrett's conduct in resiling from his willingness on this application to give an undertaking not to use the offending words again, and because of the labours involved in having to scrutinise a 551 page affidavit nearly all of which was irrelevant.[48]

43 Mukhtar AsJ's order and findings as set out above, support a finding that Mr Garrett conducted the proceeding vexatiously.

44 On 10 March 2015, Mr Garrett sought to appeal the decision of the Legal Services Board rejecting his claim on the fidelity fund, which was the subject of the two proceedings referred to above: Garrett v Legal Services Board S CI 2014 03714 and Garrett v Legal Services Board S CI 2015 0644. The Legal Services Board brought an application pursuant to O 23 of the Supreme Court (General Civil Procedure) Rules 2005. Derham AsJ granted that application. His Honour's order dismissing the proceeding records in 'Other Matters':

The Board set out extensive reasons for coming to the conclusion that Mr Garrett had no standing to make a claim on behalf of AGFT4 and I need not stay to review those reasons because the decision is not one that is capable of an appeal under s 3.6.23 of the Act. That section governs appeals against-

(a) a decision of the Board to wholly or partly disallow a claim; or

(b) a decision of the Board to reduce the amount allowed in respect of a claim...

This purported appeal is not in respect of a decision of the Board falling within the terms of either paragraph (a) or (b) of s 3.6.23(1) of the Act. It concerns the standing of Mr Garrett to make a claim under part 3.6 of the Act. There has been no investigation of a claim by the AGFT4 and no decision either to disallow the claim (in whole or in part) or to reduce an amount allowed in respect of the claim.[49]

45 The reasoning set out above supports a finding that Mr Garrett's purported appeal was a proceeding that was an abuse of process within paragraph (a) of the definition of vexatious proceeding in s 3 of the Act.

46 On 15 June 2015, Mr Garrett commenced a further proceeding against the Legal Services Commissioner: Garrett v Legal Services Commissioner & Russell Daly.[50] Mr Garrett sought certiorari and merits review of decisions made by the defendants and a declaration of inconsistent interpretation pursuant to the Charter of Human Rights and Responsibilities Act 2006. The Legal Services Commissioner applied for summary dismissal of the proceeding. On 24 December 2015, Riordan J dismissed the proceeding with costs.[51] His Honour stated:

I accept each of the submissions of the defendants and consider that, for the reasons submitted by the defendants, the plaintiff's claims are either hopeless or for relief beyond jurisdiction. However, before determining the appropriate orders I have had regard to the content of the plaintiff's draft amended originating motion for the purpose of assessing whether the document threw light on the basis of the relief sought by the plaintiff or otherwise indicated that the termination of the proceeding might lead to an injustice. In my opinion, to the extent that the indorsement on the draft amended originating motion is comprehensible, it is embarrassing and vexatious.[52]

47 Riordan J's reasoning supports a finding that the proceeding was an abuse of process within paragraph (a) of the definition of vexatious proceeding in s 3 of the Act.

Vexatious conduct of defence in Federal Court proceeding Treasury Wine Estates v Garrett VID 949 of 2015

48 In 2015, Treasury Wine Estates Ltd issued a proceeding in the Federal Court of Australia to set aside a statutory demand issued by Mr Garrett: VID 949 of 2015.[53] On 11 February 2016, Mr Garrett filed an application seeking to join 56 defendants by cross-claim including:

• The partners of Corrs Chambers Westgarth between July 2005 and 10 February 2016;
• The Board of Directors of Foster Brewing Group between November 1996 and 10 February 2016;
• The Board of Directors of Treasury Wine Estates Ltd between December 2011 and 10 February 2016;
• The Federal Court of Australia;
• Ten justices of the Federal Court of Australia;
• Four registrars and a deputy registrar of the Federal Court of Australia;
• The Federal Circuit Court of Australia;
• The Australian Human Rights Commissioner;
• ASIC;
• AusTrade; and
• Various South Australian and Victorian public authorities.[54]

49 Mr Garrett also sought an order that evidence in 53 other proceedings involving him or entities associated with him initiated between 2004 and 2015 be admitted as evidence in VID 949 of 2015.[55]

50 As to Mr Garrett's conduct in the proceedings, Middleton J stated:

Mr Garrett has made multifarious allegations against a wide variety of people without any justification based upon evidence. There is a considerable repetition of the same or similar allegations by Mr Garrett in different proceedings. He engages in a practice of naming large number of respondents while not making clear what are the allegations against them, individually or specifically. The allegations he makes, as a basis of various claims are generally unintelligible prolix and often inflammatory.

The Cross-defendants named in the cross-claims include judges, registrars, public servants, Ombudsmen, the Governor of Victoria, the Governor of South Australia, the Commissioner of Taxation, Commissioners of Police and various lawyers. As I have stated, no properly articulated allegation is made in relation to each Cross-defendant, nor has there been attempt to properly do so. All this is apparent from a reading of the materials filed or sought to be filed by Mr Garrett.

...

I have come to the view that the attempt to institute the cross-claims and counter-claims has been made to harass and annoy without there being any evidentiary foundation or reasonable ground for the allegations made by Mr Garrett. The cross-claims and counter-claims are, in their entirety, an abuse of the process of this Court.[56]

51 Middleton J's findings support the conclusion that Mr Garrett's cross-claim was a vexatious proceeding as defined in s 3 of the Act.

52 Section 29(1) of the Vexatious Proceedings Act confers power upon the Supreme Court constituted by a judge of the court to make a general litigation restraint order against a person if the court is satisfied that the person has persistently and without reasonable grounds commenced or conducted a vexatious proceeding. I have no hesitation in concluding that Mr Garrett has persistently and without reasonable grounds commenced or conducted vexatious proceedings. The orders of the South Australian Supreme Court and the Federal Court of Australia to which reference is made above would, of themselves, justify this conclusion. However, that conclusion is reinforced by Mr Garrett's history of conducting proceedings in the Victorian Supreme Court which were an abuse of process and/or relied upon affidavit material which was scandalous and irrelevant.

53 Mr Garrett was declared a bankrupt in May 2015. I have had regard to the question of whether or not Mr Garrett's bankruptcy is a discretionary factor which weighs against the making of a general litigation restraint order. Pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth), any action commenced by a person who subsequently becomes a bankrupt is stayed upon that person becoming bankrupt. The trustee in bankruptcy may elect whether to continue the action. A bankrupt's ability to commence new proceedings is also limited by the Bankruptcy Act. Section 58(1)(b) of that Bankruptcy Act provides that any property acquired by the bankrupt after he or she is declared bankrupt vests in the trustee in bankruptcy. Prima facie, this includes any choses in action constituted by any right which Mr Garrett had to bring proceedings.[57]

54 Notwithstanding the provisions of the Bankruptcy Act, there is still potential for Mr Garrett to bring proceedings if such proceedings fall within the exception prescribed by s 116(2)(g) in respect of the right to recover damages for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt. Further, notwithstanding Mr Garrett's bankruptcy he has continued to conduct proceedings vexatiously. This is illustrated by the conduct of his cross-claim in Treasury Wine Estates Ltd v Garrett, VID 949 of 2015, referred to above. Mr Garrett's application to join 56 defendants by cross-claim was initiated in February 2016, more than six months after he was declared bankrupt. The manner in which he conducted that application supports a finding that, notwithstanding his bankruptcy, there is a real risk that he will continue to commence and/or conduct vexatious proceedings unless the subject of a restraining order.

55 Further, the fact that Mr Garrett is an undischarged bankrupt supports a conclusion that he would be unlikely to have any capacity to pay any costs orders made against him. The prospect of a costs order is therefore unlikely to be any disincentive to Mr Garrett commencing baseless proceedings.[58]

56 In considering the exercise of the discretion conferred by s 29(1) I have also had regard to the fact that a general litigation restraint order will not preclude Mr Garrett from bringing proceedings where such proceedings have merit. The effect of a general litigation restraint order is that Mr Garrett cannot commence proceedings unless he has the leave of the court. The order does not constitute a blanket prohibition upon Mr Garrett from continuing or commencing proceedings in a Victorian court. Rather, the effect of the order is to place an onus upon him to demonstrate that any proposed proceeding has sufficient merit to warrant the grant of leave to continue or commence the proceeding. I propose to make an order in the terms of the orders sought in the originating motion:

Pursuant to ss 29 and 30 of the Vexatious Proceedings Act 2014 the Court orders that Andrew Morton Garrett must not, without the leave of the Supreme Court of Victoria do the following:

(a) Continue any proceeding (whether civil or criminal), in any of the following Victorian courts or tribunals:

(v) The Victorian Civil and Administrative Tribunal;

(vi) The Victims of Crime Assistance Tribunal.

(b) Commence any legal proceedings (whether civil or criminal) in any of the following courts or tribunals:

(v) The Victorian Civil and Administrative Tribunal;

(vi) The Victims of Crime Assistance Tribunal.

57 I shall provide the parties with an opportunity to make submissions on the question of costs.

[1] Email from Andrew Garrett to Patricia Athanasiadis and Associate to Justice McDonald, 2 February 2017.

[2] [2000] VSCA 176; (2000) 2 VR 436 ('Kay').

[3] Plaintiff's supplementary outline of submissions, 23 January 2017, [21].

[4] Kay [2000] VSCA 176; (2000) 2 VR 436, 437-438.

[5] Plaintiff's outline of submissions, 18 November 2016, [17]-[18]. See also A-G (Vic) v Weston [2004] VSC 314, [16]; A-G (Vic) v Knight [2004] VSC 407, [5]; A-G (Vic) v Horvath, Senior [2001] VSC 269.

[6] [2001] VSC 269 ('Horvath').

[8] See, eg, A-G (Vic) v Knight [2014] VSC 549, [39]-[40]; A-G (Vic) v Pham [2014] VSC 311, [18]; Slaveski v A-G (Vic) [2013] VSCA 165, [14], [27]; A-G (Vic) v Bahonko [2011] VSC 352, [80]; A-G (Vic) v Shaw [2007] VSC 148, [5].

[9] [2015] NSWSC 1372.

[11] [2011] NSWSC 1315.

[13] [2014] NSWSC 118.

[15] [2015] NSWSC 1372.

[17] Ibid [37]-[39]; see also [65]-[67].

[19] [2016] NSWSC 1823.

[20] Ibid [25]-[26], [30]-[32].

[21] Plaintiff's supplementary outline of submissions, 23 January 2017, [37].

[24] [2001] VSC 269 ('Horvath').

[25] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, [139]; Hollington v FW Hewthorn & Co [1943] CB 587, 594-97; Land Securities PLC v Westminster City Council [1993] 1 WLR 286, 288; National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700, [48]; Cadbury Schweppes Pty Ltd v Amcor Limited (No 3) [2008] FCA 1668, [4].

[26] Horvath [2001] VSC 269, [28]. See also A-G (Vic) v Knight [2014] VSC 549, [39]; A-G (Vic) v Pham [2014] VSC 311, [18]; Slaveski v A-G (Vic) [2013] VSCA 165, [29].

[27] [2013] VSCA 165, [29].

[28] Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 19 February 2014, 371-372 (Robert Clark, Attorney-General).

[29] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Anderson J dated 5 May 2007, Supreme Court of South Australia, proceeding number SCCIV-04-127.

[31] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Layton J dated 30 January 2009, Supreme Court of South Australia, proceeding number SCCIV-96-2244.

[33] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Layton J dated 30 January 2009, Supreme Court of South Australia, proceeding number SCCIV-07-1342.

[35] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mortimer J dated 21 November 2014, Federal Court of Australia, Melbourne, proceeding number VID 248/2014.

[37] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Pagone J dated 26 February 2015, Federal Court of Australia, Melbourne, proceeding number VID 600/2014.

[39] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Garrett v Legal Services Commissioner [2015] VSC 465.

[43] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Reasons for Decision, Garrett v Legal Services Board, (Mukhtar AsJ, Supreme Court of Victoria, 30 October 2014, proceeding no SCI 2014 03714).

[45] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mukhtar AsJ dated 30 October 2014, Supreme Court of Victoria, proceeding number S CI 2014 03714.

[46] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mukhtar AsJ dated 25 March 2015, Supreme Court of Victoria, proceeding number S CI 2015 0644.

[47] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Statement of Reasons, Garrett v Legal Services Board, (Mukhtar AsJ, Supreme Court of Victoria, 25 March 2015, proceeding no SCI 2015 00644) [4].

[49] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Derham AsJ dated 19 March 2015, Supreme Court of Victoria, proceeding number S CI 2015 1047.

[51] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Garrett v Legal Services Commissioner [2015] VSC 772.

[53] Exhibit P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, [32].

[54] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Interlocutory application filed 8 February 2016, Proceeding No 949 of 2015, Federal Court of Australia, Victoria.

[56] Exhibit PA-1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Treasury Wine Estates Vintners Ltd v Garrett [2016] GCA 496, [63], [64], [70].

[57] Moss (aka Miller) v Eaglestone [2011] NSWCA 404; (2011) 285 ALR 656, [28].

[58] A-G (NSW) v Gargan [2010] NSWSC 1192, [130]; Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927, [83].