Rubis v Garrett as Trustee of the Andrew Garrett Family Trust Trading as Dynamic Commercial Workforce Solutions

Federal Court of Australia|2018-11-08|Before: Mr J, Rares J

The first respondent's notice to produce dated 8 October 2018 be set aside.
Hall Chadwick (NSW) Pty Ltd ACN 103 221 352, Brent Kijurina, Richard Albarran, Altius Partners Pty Ltd and Francis Cahill be joined as applicants in the present proceeding in respect of the relief claimed in the originating application filed 2 October 2018.
The applicants file and serve an amended originating application reflecting the amendment in order 2, on or before 9 November 2018.
The first respondent pay the costs of the interlocutory application dated 1 November 2018.
The first respondent file electronically and serve, and provide a hard copy printed double-sided to the Court in Sydney, an affidavit paginated consecutively annexing only the transaction document or documents and no other material, by reference to which the first respondent claims that each applicant respectively entered into a transaction securing payment or performance of an obligation so as to create the security interest (within the meaning of s 12 of the Personal Property Securities Act 2009 (Cth)), that the first respondent relies on in support of the registration No 201809070092758 of the security interest against each applicant referred to in paragraph 2 of the amended originating application, on or before 16 November 2018.
The twenty-fourth applicant file and serve any affidavit upon which he proposes to rely, on or before 23 November 2018.
The proceeding be fixed for case management on 27 November 2018 at 9.30am.

UPON THE APPLICANTS, BY THEIR COUNSEL, GIVING TO THE COURT THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

The first respondent, by himself, his servants or agents, be restrained pending the determination of these proceedings from: (a) enforcing or taking any further steps to enforce any purported security interest held by him over any of the personal property of the twentieth to twenty-fourth applicants. (b) registering or applying to register upon the Personal Property Securities Register any further financing statement in respect of any security interest in the personal property of the twentieth to twenty-fourth applicants in these proceedings. (c) lodging with the Australian Securities and Investment Commission any notice of any purported appointment of Andrew Garrett or any other person or entity as managing controller of the twentieth and twenty-third applicants in these proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 The applicants commenced this proceeding on 2 October 2018 by filing an originating application seeking: (1) a declaration that the first respondent, Andrew Garrett, does not hold any security interest, as defined under the Personal Property Securities Act 2009 (Cth) (PPSA), entitling him to lodge any financing statement upon the Personal Property Securities Register (PPSR) alleging the conferral of any security interest by any of the applicants in the proceeding; (2) an order under s 182(4)(a) of the PPSA that the second respondent, the Registrar of Personal Property Securities, remove the registration of the purported security interests recorded in registration number 201809070092758 (the Registration); and (3) a declaration that the document entitled 'Amended Notice of Crystallisation of Charge/Amended Notice of Seizure of Collateral', that Mr Garrett had created, signed and subsequently amended, is invalid and of no force or effect. 2 Mr Garrett is an undischarged bankrupt and the subject of an order of this Court, made on 26 February 2015, pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), that declared him to be a vexatious litigant and restrained him from instituting in his own name, causing others to institute or being concerned (whether directly or indirectly) in the institution of any proceeding in any Registry of the Court, without the leave of the Court. 3 On 1 November 2018, the applicants filed an interlocutory application which gives rise to the present issues, seeking orders that first, a notice to produce issued by Mr Garrett on 8 October 2018 be set aside, secondly, that Hall Chadwick (NSW) Pty Ltd, Brent Kijurina, Richard Albarran, Altius Partners Pty Ltd and Francis Cahill (the proposed applicants) be joined as applicants in the present proceeding in respect of all the relief claimed in the originating application, and thirdly, the orders made by consent on 11 October 2018 be extended to cover the proposed applicants, together with an order that Mr Garrett pay the costs of the interlocutory application. 4 When the interlocutory application came before me at the case management hearing on 2 November 2018, Mr Garrett understandably said that he was not in a position to deal with it and asked that it be set down for hearing on a later date. I made orders that fixed that hearing for today and required the parties to file and serve submissions and evidence.

The joinder application 5 It is common ground that each of the proposed applicants have been the subject of a claim by Mr Garrett and that he holds some alleged security interest over them or their property which is the subject of the Registration and appears to be related to what is now called the Further Amended Notice of Crystallisation of Charge/Further Amended Notice of Seizure of Collateral (being the latest known amendment of the document to which I referred in [1] above) on which he relies for that purpose. 6 I am satisfied on the evidence that the proposed applicants are persons who are proper and necessary parties to be joined to seek relief against the same course of conduct complained of for which the applicants named in the originating application sue and in respect of which there are common issues warranting their joinder. In my opinion, the proposed applicants are entitled also to relief from having any further action taken by Mr Garrett against them until the proceeding is determined, on the same terms as in order 1 made on 11 October 2018.

The notice to produce 7 The notice to produce sought orders that the original applicants produce, first, any document or thing relating to any application for finance made to any of three named financial institutions or any other bank that they had been a party to and, secondly, a number of documents relating to particular financing applications made to the ANZ Banking Group by any party related to any of the applicants, including any bank statements for the period between 1 July 2011 and 8 October 2018, any documents or things related to offers of finance by ANZ or two other named banks made at any time and any settlement of finance provided to them, thirdly, a mobile telephone statement for the first applicant, Robert Rubis, for the period between 13 and 25 August 2013, and fourthly, any document or thing related to correspondence between any of the applicants and the liquidators of three of the corporate applicants and of a fourth company, called Holy Grail Blue Pty Ltd, to each of which, Mr Garrett claims, notwithstanding that he is an undischarged bankrupt, he is entitled to appoint himself as a controller. Mr Garrett stated in his submissions today that he does not have copies of these documents and seeks them to enable him to bring some wide-ranging, unspecified series of claims. 8 The notice to produce is plainly oppressive on its face, amounts to a complete fishing expedition, is unlimited in time in respect of all documents sought, other than the mobile phone account and the over seven year period for banking documents, and at the moment, has no possible relevance to the proceeding. 9 In his written submissions for today's application, Mr Garrett also asserted that he had lodged for filing by the Court cross-claims against over 270 cross-respondents. He has not applied for leave to file the cross-claims in accordance with the Court's orders of 26 February 2015. Instead, he claimed that he did not need leave to do so. The proposed cross-claim seeks to join all of the justices of the High Court of Australia who decided Attwells v Jackson Lalic Lawyers Pty Limited (2016) 259 CLR 1, on the basis that Mr Garrett claims that he is entitled to seek judicial review of that decision. He also noted, in his submissions, that the Court is bound to review the conduct of various other persons whom he claims are officers of the Court, including persons who are liquidators and lawyers. 10 At the same time, in his written submissions for today's hearing, he maintained that this Court has no jurisdiction over him, because s 38 of the Judiciary Act 1903 (Cth) in some way deprived it of that. This assertion ignored s 207 of the PPSA that gave the Court jurisdiction in all matters under that Act and s 39B(1) of the Judiciary Act that gave the Court jurisdiction in any matter arising under the Constitution or involving its interpretation. 11 He then claimed that where there is a fraud on the Court by any person, including the Court itself, the burden of proof in the Court becomes that of the civil jurisdiction, being on the balance of probabilities. Finally, Mr Garrett submitted that the Court cannot decide his case because he has lodged on the PPSR a financing statement against it and that every judge of the Court is biased, actually or apparently, by reason of having a financial interest in that financing statement. 12 Mr Garrett asserted that the notice to produce presumably had some relevance to whatever supposed causes of action Mr Garrett seeks to have the Court entertain, notwithstanding his concurrent but incoherent view, that the Court has no jurisdiction. There is no current proceeding in which any of those issues can be ventilated. There is no justification for the wide terms of the notice to produce. It is plainly harassing, not of any apparent relevance and is an abuse of process of the Court: Walton v Gardiner (1993) 177 CLR 378 at 393, per Mason CJ, Deane and Dawson JJ. Right-thinking people would think that the enforcement of the notice to produce and allowing Mr Garrett to pursue the matters raised in his submissions would bring the administration of justice into disrepute.

Conclusion 13 I will make the orders sought in the interlocutory application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

SCHEDULE OF PARTIES NSD 1848 of 2018 Applicants Fourth Applicant: OURANOS HOLDINGS PTY LTD ACN 162 749 573 Fifth Applicant: MAIGA PTY LTD ACN 162 744 729 Sixth Applicant: MANTA WHARF PTY LTD ACN 164 049 450 Seventh Applicant: RUMA PTY LTD ACN 067 962 083 Eighth Applicant: PROSPERO GROUP-BOURKE ROAD PTY LTD ACN 133 247 766 Ninth Applicant: RUBIS TRADING PTY LTD ACN 165 684 122 Tenth Applicant: WHARFSIDE PTY LIMITED ACN 122 604 157 Eleventh Applicant: MANUJAN PTY LTD ACN 099 288 650 Twelfth Applicant: ACN 111 804 383 PTY LTD ACN 111 804 383 IN ITS OWN CAPACITY AND AS TRUSTEE OF HTE YATES BEAGGI LAWYERS UNIT TRUST ABN 94 925 098 876 Thirteenth Applicant: YATES LAW PTY LTD ACN 168 284 352 IN ITS OWN CAPACITY AND AS TRUSTEE OF THE YATES & CO UNIT TRUST ABN 75 188 551 271 Fourteenth Applicant: STEVEN VLAHOS Fifteenth Applicant: FINANCIAL PTY LTD ACN 149 682 128 Sixteenth Applicant: BRENTON ADRIAN YATES Seventeenth Applicant: FARSHAD AMIRBEAGGI Eighteenth Applicant: STRUT MASTER NO 2 PTY LIMITED IN ITS OWN CAPACITY AND AS TRUSTEE OF THE YATES AMIRBEAGGI UNIT TRUST ABN 54 278 630 521 Nineteenth Applicant: THE DECEASED ESTATE OF JURIS VOLDEMARS RUBIS BY ITS REPRESENTATIVE ROBERT VOLDEMARS RUBIS Twentieth Applicant: HALL CHADWICK (NSW) PTY LTD ACN 103 221 352 Twenty-First Applicant: BRENT KIJURINA Twenty-Second Applicant: RICHARD ALBARRAN Twenty-Third Applicant: ALTIUS PARTNERS PTY LRD Twenty-Fourth Applicant: FRANCIS CAHILL

Judiciary Act 1903(Cth)ss 38, 39B

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