Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd

[2007] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ANDREW GARRETT WINES RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD AND OTHER ACTIONS

[2007] SASC 173

Judgment of The Honourable Justice Anderson

17 May 2007

EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN LEGAL PROCEEDINGS

Application for a declaration and orders pursuant to s 39 Supreme Court Act seeking a declaration that Andrew Garrett has persistently instituted vexatious proceedings and an order that he be prohibited from instituting further proceedings and also an order staying all current proceedings - Whether defendant persistently instituted vexatious proceedings and whether the proceedings were instituted without reasonable ground - Consideration of the relevant principles - Consideration of other applications as background material - Meaning of 'proceedings' under s 39 - Whether applications taken out within an action are proceedings for the purpose of s 39 of the Act - Whether vexatious proceedings instituted 'persistently' - Declaration made and orders granted.

Supreme Court Act 1935 (SA), s 39; Real Property Act 1886 (SA); Evidence Act 1929 (SA), s 125; Corporations Act 2001 (Cth), s 206G; Bankruptcy Act 1996 (Cth); Crown Proceedings Act 1992 9(2)(c); Supreme Court Rules 1987 (SA), r 11, r 25, referred to.
Ramsey v Skyring (1999) 164 ALR 378; Mitsubishi Motors Australia Limited v Kowalski [2005] SASC 154; Attorney-General (SA) v Burke (1997) 190 LSJS 28; Attorney-General for the State of South Australia v Piepkorn [2005] SASC 154; Brogden v Attorney-General [2001] NZCA 208; Attorney-General v Wentworth (1988) 14 NSWLR 481; Andrew Garret Wine Resorts & Anor v National Australia Bank Ltd (No 2) (2005) 239 LSJS 56; Williams v Spautz (1992) 174 CLR 509; Commonwealth Bank Ltd v Heinrich [2003] SASC 322, applied.
Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors [2006] SASC 381; Brogden v Attorney-General [2001] NZCA 208; Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd (No 6) (2005) 92 SASR 419; Garrett v Westpac Banking Corporation [2007] FCA 525; Garrett v Bransbury [2007] FCA 529; Sunburst Properties Pty Ltd (In Liq) v Agwater Pty Ltd & Ors [2005] SASC 335; Sunburst Properties Pty Ltd (In Liq) v Agwater Pty Ltd & Ors (No 2) [2005] SASC 393; Evajade Pty Ltd & Ors v The Registrar-General of South Australia & Ors Supreme Court of South Australia, 25 November 2005 (unreported); Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd & Other Actions (No 2) [2006] SASC 75; Andrew Garrett Wine Resorts Pty Ltd & Ors v National Australia Bank Ltd (2005) 92 SASR 419; Andrew Garret Wine Resorts Pty Ltd & Ors v NAB Ltd (2004) 236 LSJS 342; Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors [2006] SASC 381; Andrew Garrett Wine Resorts Pty Ltd & Ors v NAB Ltd & Ors [2006] SASC 130, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"proceedings", "persistently"

ANDREW GARRETT WINES RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD AND OTHER ACTIONS
[2007] SASC 173

Civil

ANDERSON J:

Introduction – Orders Sought

1. This is an application by the National Australia Bank Ltd (“NAB”) pursuant to s 39 of the Supreme Court Act 1935 (SA) (“the Act”). NAB is seeking:

   1A declaration that Mr Andrew Morton Garrett, has "persistently instituted vexatious proceedings" as defined by s 39(1) of the Act.

   2An order that Mr Garrett should be prohibited from:

   (a)     instituting in his own name,

   (b)     causing others to institute, or

   (c)    being concerned whether directly or indirectly in the institution of any proceedings in any Court of the State of South Australia against NAB or Sunburst Properties Pty Ltd (Receivers & Managers Appointed) (In liquidation), (Sunburst Properties) or any related body corporate, officer, employee, agent, adviser, receiver, receiver and manager or liquidator (or any of their partners or staff) (including any former employee, agent, adviser, receiver, receiver and manager or liquidator (or any of their partners or staff) of the defendant or Sunburst, without the leave of this Honourable Court.  In addition, NAB is seeking an order permanently staying a number of actions in this Court, and the dismissal of two of the actions.

   3An order that Supreme Court Action No. 127 of 2004 is dismissed, subject to the taxation of outstanding costs orders.

   4An order that Supreme Court Action No. 1767 of 2003 is dismissed, subject to the taxation of outstanding costs orders.

2. This application was taken out by NAB following argument in an appeal instituted by Mr Garrett.  That was an appeal from a decision of a Master in action SCCIV-04-127.  During the appeal, counsel for NAB intimated that such an application would be made.  On 11 August 2006 a Notice for Specific Directions was filed which was made specifically returnable before me.  I heard argument on 28 and 29 September 2006 in this matter.

3. Prior to the hearing, but after a flood of interim applications and correspondence from Mr Garrett to my chambers and to NAB’s solicitors, I made an interim order, with Mr Garrett’s consent.  The order restrained Mr Garrett in his personal capacity, or as agent for any of the entities involved in these disputes, including companies, trusts or partnerships with which he may be associated, from instituting or continuing proceedings against NAB, Sunburst or any related body corporate, employee or agent or advisor of NAB by way of filing any further documents in actions SCCIV-04-127, 04-1767, 05-422, 05-423, 06-590 and 05-164 until further notice.

4. This application, brought by NAB, is in relation to the above Supreme Court actions with the exception of SCCIV-04-164.  That action has been stayed by a Master pursuant to r 11 of the Supreme Court Rules 1987 (SA). 

   Background

5. The relationship between NAB and Mr Garrett commenced in early 2002 when NAB began dealings with the various companies known as the Garrett Group. 

6. The group included the following entities:

   ·Sunburst Holdings Pty Ltd ("Sunburst Holdings")

   ·Sunburst Properties Pty Ltd ("Sunburst Properties")

   ·Drumcalpin Wines Pty Ltd

   ·Braidwood Operations Pty Ltd ("Braidwood Operations")

   ·Braidwood Management Pty Ltd

   ·Garrett International Investments Pty Ltd ("Investments")

   ·Agwater Pty Ltd ("Agwater") & Andrew Garrett Wine Resorts Pty Ltd ("Resorts")

7. The bank in mid January 2002 advanced by way of bill facility the sum of $1.75M to Sunburst Holdings.  Then in July 2002 NAB advanced a further $4.12M by way of bill facility to Sunburst Properties.  The funds were used by Sunburst Properties to purchase a property at Langhorne Creek known as Bulka Station.

8. Sunburst Properties in turn loaned approximately $2.25M to Agwater so that Agwater was able to purchase the water pipeline and infrastructure to transfer water from Lake Alexandrina to the Bulka Station property. 

9. In June of 2002 NAB also advanced the sum of $1.5M to Mr and Mrs Garrett and it was with those funds that the property known as Springwood Park was purchased.  Mr and Mrs Garrett lived at that property.

10. By mid-2003 both the Sunburst companies and Mr and Mrs Garrett had defaulted in payments.  NAB shortly thereafter issued notices of demand.  As a result of NAB's attempts to enforce its securities there arose two areas of dispute, namely, the enforcement of the securities over Springwood Park and the enforcement of securities over Bulka Station. 

11. I will summarise briefly the actions involved in this application.

    1.     Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd – SCCIV-04-127

12. This action was commenced by Andrew Garrett Wine Resorts Pty Ltd (“Resorts”) and Mr Garrett's wife, Averil Garrett, against NAB.  The action generally relates to what has been referred to in submissions as the “possession finding”, determining NAB’s right to possession of Andrew Garrett’s family home, Springwood Park, because of failures by the Garrett group to make payments pursuant to the mortgage held by it.

13. The original orders sought by the plaintiffs included an interlocutory injunction restraining NAB from taking steps to enforce its rights pursuant to the mortgages over Springwood Park.  Declarations were sought that the first and second mortgages secured only limited amounts, namely, $1.5M and $2.1M respectively plus interest and costs.

14. Prior to the institution of Action No. 127 of 2004, NAB had served notices of demand on the Garrett group and had sought a summary order for possession in respect of Springwood Park.  That was Action No. 1506 of 2003.  An order for possession was made in favour of NAB.  That was on 3 December 2003.  Action No. 127 of 2004 was commenced on 4 February 2004.

15. An appeal against the order of possession was initially successful before Besanko J.  That was on 5 March 2004.

16. At that time Besanko J ordered that Action No. 1506 of 2003 and Action No. 127 of 2004 should be consolidated.  The action proceeded as the latter.  By 28 July 2004, Besanko J found conditions imposed on Mr Garrett, relating to a stay he had imposed against NAB taking possession, had not been complied with by Mrs Garrett and Resorts.  His Honour then discharged the order for a stay and reinstated NAB's order for possession.

    2.     Sunburst Properties Pty Ltd (In Liq) v Agwater Pty Ltd & Ors – SCCIV-03-1767

17. This action involves a dispute over a Joint Sale Agreement for a property known as Bulka Station and involves the receivers of the company Sunburst and has been referred to in argument as the “Bulka Station finding”.  In mid-2003 administrators and then receivers and managers of Sunburst properties were appointed.  They attempted to sell Bulka Station, the water licences and the infrastructure relating to that property.

18. The water licences were owned by Agwater.  On 5 November 2003 the receivers and managers entered into a Joint Sale Agreement with the directors of Agwater and pursuant to that agreement it was proposed that the property, the water licences and the pipeline assets would all be sold together with the proceeds to be divided between Sunburst Properties and Agwater.

19. It was then that a dispute arose with Mr Garrett challenging the validity of the agreement and the authority of two directors who entered into the agreement.  Mr Garrett had not signed the document.  Mr Garrett asserted that the agreement was not valid as the directors who entered into the agreement on behalf of Agwater did not have authority as they had purportedly resigned prior to the signing of the agreement.

    3.     Evajade Pty Ltd & Ors v The Registrar General 7 Ors – SCCIV-05-422

20. This action has been described in argument as an action instituted by Mr Garrett, on behalf of Evajade, in an attempt to re-litigate the "possession finding" in Action No. 127 of 2004, and including other findings relating to NAB’s mortgages over Springwood Park, and brings into play findings relating to stamp duty, Mr Garrett’s standing and ability to pursue any actions, and also arguments concerning a mortgage granted by the Rothschild group.  The Registrar-General of the Lands Title Office, NAB and Sims Partners as agents for NAB were joined in the action as defendants with Mr Garrett purporting to act on behalf of Evajade claiming possession of Springwood Park and seeking injunctions preventing any further dealings with the property.  This action was dismissed by Judge Withers on 25 November 2005 as disclosing no cause of action with costs to be paid by the plaintiff to the defendant on an indemnity basis.

    4.     Phoenix Rising Vineyards Pty Ltd & Ors v The Registrar-General & Ors – SCCIV-05-423

21. This action was taken out by Andrew Garrett and on the face of it involved the re-litigation of the same issues involved in Action No. 1767 of 2003.  It involved the Bulka Station dispute and is a mirror image of Action No. 423 of 2005 but involving a different property.  Phoenix was a Garrett company.  The action was instituted following the completion of the trial in Action No. 1767 of 2003 before Gray J, but prior to judgment having been delivered.

    5.     Andrew Morton Garrett v Sunburst Properties Pty Ltd and NAB Ltd – SCCIV-06-590

22. Again, this action was commenced by Mr Garrett, and again involved the Bulka Station dispute.  The parties are essentially the same as those involved in Action No. 1767 of 2003.  In bringing this action Mr Garrett sought to “rely on all of affidavits in actions 127 and 1767 of 2003 (sic)”. This action has been dismissed by virtue of r 25.04 of the Supreme Court Rules1987 and will not be the subject of any order made pursuant to s 39 of the Act. Nonetheless, it is relevant as part of the factual matrix.

    Materials relied on

23. In this matter I have examined extensive documentation provided by both NAB and Mr Garrett.

24. Both sides provided written submissions and lists of authorities.  In addition, NAB relied on the affidavits of Ms E Thomson dated 11 August 2006 and 20 September 2006.  Mr Garrett relied on a number of affidavits, on various files.  His affidavit of 26 September 2006 was tendered and admitted into evidence as an exhibit.  Certain correspondence was also relied upon and admitted into evidence.  Mr Garrett also sought to tender evidence by way of reports from his treating psychiatrist, Dr Chris Branson.  He asserted that it was relevant to show that at all times he believed his actions were reasonable.  I did not allow Mr Garrett to tender any report, nor did I allow Mr Garrett to call Dr Branson to give evidence.

25. It is now a commonly accepted principal that an objective examination is required when determining if proceedings have been instituted without reasonable ground and as a result are to be considered as vexatious proceedings for the purpose of s 39 of the Act. In Ramsey v Skyring (1999) 164 ALR 378 the Federal Court considered a similar application to the one at bar. At [56] Sackville J states that:

    The test of whether a person “without any reasonable ground institutes a vexatious proceedings” is an objective one. In  Jones v Skyring (at ALJR 813) , Toohey J endorsed the observation of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 208, in relation to almost identical language contained in the Supreme Court of Judicature (Consolidation) Act 1925 (UK) s51(1):

    [The words] are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.

    As Toohey J observed, the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is therefore immaterial that the respondent may believe the justice of his or her argument and may not understand that the argument has been authoritatively rejected.

26. A similar approach has been taken most recently in Mitsubishi Motors Australia Limited v Kowalski (2004) 236 LSJS 101 and also in Attorney-General (SA) v Burke (1997) 190 LSJS 28. Whatever Mr Garrett’s honest belief may have been regarding the institution of proceedings, the test contained within the provisions of s 39 of the Act requires an objective consideration of the reasonableness of the institution of the relevant proceedings. It is for this reason, I did not allow Mr Garrett to tender the report prepared by Dr Branson.

27. At the same time, Mr Garrett requested that I watch a DVD and admit it into evidence.  On that DVD was a portion of the “Today Tonight'”program.  Mr Garrett sought to tender it into evidence on the basis that the DVD sets into context other reports of similar actions of that style in respect of National Australia Bank.

28. In effect Mr Garrett was attempting to admit it as some sort of similar fact or propensity evidence.  I watched the DVD and then I ruled it inadmissible, on the basis that is irrelevant for the purpose of this application.

    The “Omnibus” Document

29. Prior to the hearing of this application Mr Garrett forwarded to my chambers a document which he sought to rely on in defence of the claim by NAB that he had persistently instituted vexatious proceedings.

30. The document has been described in argument by Mr Livesey QC, counsel for NAB, as the “omnibus” submission or, alternatively, as the “Royal Commission into all Garrett related matters”.

31. Neither description is inappropriate in my view.  Indeed, it would be fair to say that the 443 page document is puzzling and confusing but at the same time, as I will later find, it contains vexatious and scandalous allegations.

32. It is an attempt by Mr Garrett to effectively put his life story before the court and also the history of all companies with which he has been involved and it purports to deal across the board with every person and every entity that has, at any stage, placed obstacles in Mr Garrett's pursuit of what he calls his right to justice.

33. Mr Garrett, as far as I can see, has purported to involve more than seventy individuals or entities including companies and partnerships in allegations which are to all intents and purposes identical.

34. The allegations generally follow the same pattern, and include allegations of various persons and entities acting unconscionably, in conflict of interest, in misleading or deceptive conduct, acting for unjust enrichment to the detriment of the Garrett interests, acting without clean hands, acting oppressively, committing fraud, breaching duties of care, conspiring to defraud the beneficiaries of the Garrett family trust, breaches of contract law, breaches of trust, breaches of the Crimes Act, breaches of the Laws of Australia and breaches of the maxims of law in respect of equity.  Those are the terminologies used by Mr Garrett.

35. The allegations are made against several lawyers, and also including counsel who have acted against him at various stages.  Most of the allegations do not deserve consideration and are based on bald statements and assertions without any basis provided.  Some of these allegations are scandalous and vexatious.  They are repeated each time a further part of the Garrett saga is unfolded according to the way in which Mr Garrett has chosen to relate the whole unfortunate history of his commercial demise. 

36. Mr Garrett sought to file this “omnibus” document.  I refused him leave to file it but I said I would take it into account as part of his submission.  Insofar as it is necessary I formally refuse leave to file the document.  It is scandalous and vexatious and an abuse of the court process.

37. Mr Garrett also asked me to consider a document previously prepared for another hearing.  This was an appeal which I heard from a decision of a Master.  Much of this information related to an argument regarding the Supreme Court's refusal to accept Bills of Exchange tendered by Mr Garrett.  All of the factual basis of this dispute is set out in my reasons in Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors [2006] SASC 381.

38. In addition to his submissions and in addition to the “Omnibus” document, Mr Garrett also filed an affidavit which is Exhibit D4 in these proceedings.  This document is voluminous and includes long and detailed exhibits.  It purports to deal with matters involving Mr Garrett's standing and in particular in relation to his ability to represent the company Evajade in his capacity as trustee of the Andrew Garrett Family Trust.  It is again a re-run of the numerous arguments presented to judges and masters of this court, all of which are dealt with later in these reasons.

39. In the affidavit Mr Garrett alleges “wilful blindness” of a judge of this court.  He asserts that:

    I began to suspect that the judiciary had closed ranks and were determined to not allow me standing in any capacity, this was demonstrated by the ongoing judgments of Lunn J and Vanstone J resulting in the necessity for ongoing notices of appeal.

1. Mr Garrett had Judge Lunn removed from the management of his actions and Judge Burley was given the task.  In his affidavit Mr Garrett alleges that Judge Burley had “determined to silence him no matter the impact on natural justice”.  He indicates in his affidavit which is dated 26 September 2006 that he has also been concerned that “for the last 10 months many members of the Supreme Court judiciary were determined to ‘gag’ me”. 

2. It seems somewhat unusual that someone defending an allegation that he has persistently instituted vexatious proceedings would respond in an affidavit of this type alleging, effectively, that the judiciary was part of a grand plot against him.

3. I will deal in more detail with Mr Garrett's responses to the allegations made against him by NAB later in these reasons.

   The NAB contentions in summary

4. NAB has submitted that there are numerous instances where Mr Garrett has repeatedly sought to re-litigate issues which have been the subject of final determination by judges and masters of this court.  It submits that the vexatious nature of these proceedings is evident.  I will examine each instance where NAB contends the proceedings were instituted vexatiously later in these reasons.

5. There are really four key areas of dispute which are used by NAB to illustrate the points it seeks to make.  I will use the terminology of NAB for convenience.  The areas are highlighted in the submissions made by NAB as follows:

   ·The bank’s right to possession of Springwood Park pursuant to the first of NAB’s mortgages over Springwood Park – the possession finding; this also includes matters relating to NAB’s mortgages over Springwood Park and related issues of stamp duty; it also includes matters relating to the Rothschild mortgage and its discharge;

   ·Mr Garrett, as a bankrupt, was not permitted to represent companies or other persons – standing finding;

   ·the question of whether the Joint Sale Agreement for Bulka Station was valid, and whether the receivers of Sunburst were therefore entitled to sell that property – Bulka Station finding;  and

   ·the question of whether a bill of exchange is legal tender and whether there is any legal obligation on a payee to accept such a bill – bill of exchange finding.

6. In support of its claim for a declaration against Mr Garrett, NAB asserts that he has embarked upon a crusade to attempt to overturn the possession order made in respect of the Springwood Park property.  His efforts to achieve that goal involved his many attacks upon the officers of NAB which, go so far as to threaten criminal proceedings against various officers and directors of NAB. 

7. NAB submits that this was part of a "carefully orchestrated plan in which Mr Garrett is trying to bring pressure to bear on those whom he regards as the decision makers within NAB".  It has been submitted to me that unless Mr Garrett is prohibited he will continue to institute proceedings designed to re-agitate final decisions of this court.

8. Although the initial allegations by Mr Garrett against NAB were designed to prevent NAB from taking possession of Springwood Park there was also a dispute which arose involving another of the Garrett properties, namely, Bulka Station.  NAB submits that as a result of an error made by the receiver and manager, a security was released in respect of the company Agwater.  This mistake then took that aspect out of the control of the receiver and manager and NAB submits that Mr Garrett sought to take advantage of that situation.

9. Mr Garrett, in turn, issued all manner of challenges in relation to the validity of the sale agreement entered into between Sunburst and Agwater as he therefore had another front on which to fight his battle against NAB.

10. He was thus able to frustrate NAB in relation to its efforts to sell Bulka Station and the associated infrastructure dealing with the water system which supplied the property.

11. NAB has submitted that in each of the proceedings involved in this application, except in Action No. 127 of 2004 and Action No. 1767 of 2003, final orders have already been made by the court dismissing the proceedings.  NAB seeks, in addition to the orders already discussed, that I dismiss both Action Nos. 127 of 2004 and 1767 of 2003.

12. In addition NAB points to Mr Garrett's lack of standing in any of these matters.  As I develop later in these reasons, Mr Garrett has, according to NAB's submissions continued to claim that he appears for various entities and individuals when in the meantime findings have been made by various members of this court, masters and judges, that he has no standing.

13. This is only meant as a brief review of the case put forward by NAB which is developed in these reasons by reference to the individual applications and the way that they should be regarded within the various actions which are relevant to this application by NAB.

    Andrew Garrett’s response

14. Mr Garrett’s response to the application by NAB is both written and oral.  He made detailed oral submissions before me but prior to that he had filed his response by way of an affidavit with extensive exhibits annexed to the affidavit as I have mentioned.

15. He argued that he had proper standing by reference to an affidavit which he filed in the Federal Court on 11 September 2006 and which he relied upon in this matter.  He asked me to use this document to better understand his submissions.

16. This affidavit reveals a somewhat convoluted argument that Andrew Morton Garrett, who was born on 11 April 1957, is a different legal entity from Garrett-Andrew Morton who was registered as being born on 17 April 1957.  As I understand his argument the registration of his birth creates a legal fiction.  This is his “straw man” argument and he indicates in his affidavit that when he became aware of this he filed an affidavit of corporate denial.

17. I am asked to conclude from all of this that therefore he, Andrew Garrett, is not bankrupt and has standing before the court.

18. I would have thought that the last thing anyone would wish to do in the position of defending an allegation that he was a vexatious litigant would be to rely upon an argument such as the one I have attempted to summarise above.  It is an argument entirely without merit but indicative of the mind set of a person determined to proceed, whatever the consequences, with any unmeritorious argument which might delay and harass NAB in its actions to recover monies owed to it by Mr Garrett and his companies.

19. The next topic which Mr Garrett puts forward as indicating that he is not vexatious relates to what he says is NAB’s failure to comply with various orders which have been made regarding service.  This relates again, to Evajade Pty Ltd and Michael Garrett, and also the grantor of the bill of exchange, Credit Net Bank Internationale.

20. Because those entities were not served with any proceedings subsequent to 4 August 2004, Mr Garrett argues that everything that has happened since that point of time is invalid and therefore all of the orders that have been made against him should be disregarded when considering the question of whether he is vexatious.

21. I have already dealt with this matter separately in  my judgment, Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors [2006] SASC 381, where I pointed out that the only involvement of Evajade and Michael Garrett was for a limited purpose, namely, to protect NAB’s rights in relation to a Mareva injunction.  Since that time Mr Garrett has regularly added both Evajade and Michael Garrett to various documents which he has filed and then sought to use the fact that they have not been served with subsequent process to invalidate all of the proceedings.  As I pointed out in my earlier judgment there was simply no need for them to be involved in the actions subsequent to the resolution of the matters relating to the Mareva injunction which were in fact orders made by consent.

22. In combination with this argument Mr Garrett drew attention to a memorandum of appointment of himself as the joint trustee of both the Andrew Garrett Family Trust and the Andrew Garrett Family Trust No.2.  This again involves the same dispute regarding Evajade.

23. Mr Garrett then relies on an application which he took out for special leave to appeal from the decision of the Full Court (see Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors (2004) 236 LSJS 342) to the High Court of Australia. Following the Full Court decision Mr Garrett had taken out an application for special leave to appeal to the High Court but had not proceeded according to the rules of the High Court and therefore that application was dismissed pursuant to the rules. He wanted to convince me in this application that that matter was still alive and that it was being pursued by him and therefore all the issues relating to the argument regarding possession and sale of the Springwood Park Property were yet to be determined.

24. I put Mr Garrett on notice that a search of the High Court records indicates that his submission is incorrect.  I have been informed that the matter is no longer currently before the High Court as it was determined by the registrar that he had no standing in the High Court.

25. Nevertheless he used his summary of argument to the High Court as part of the submissions he made to me to demonstrate why he should not be declared vexatious.  Once again on the face of it this would tend to support the opposite conclusion.  The appeal in as much as it relates to the sale of the Springwood Park property would seem to be a waste of time.  The property has been sold and the transfer registered.  As was submitted to me by Mr Livesey, the action involving this dispute was Action No. 127 of 2004 and it is now moribund.  That is because Andrew Garrett Resorts is in liquidation and the liquidators discontinued the action back in September 2005.  Mrs Garrett, the other plaintiff, is bankrupt and her trustee did not elect to assume the conduct of the action.  Furthermore NAB’s counterclaims against both Andrew Garrett and Mrs Garrett are stayed by virtue of the Corporations Act2001 (Cth) and the Bankruptcy Act 1996 (Cth). 

26. Mr Garrett in his affidavit then complains, “the judiciary had closed ranks and were determined to not allow me standing in any capacity”.  He refers to some specific judgments and he refers to various transcripts of evidence and argument before the masters.  In particular in one argument in Action No.590 of 2006 before Judge Burley, which took place after the application by NAB to declare Mr Garrett vexatious was taken out, he says, in talking about this application:

    “I am waiting to see what happens with the current action that is on foot with his Honour Anderson J and I’m not absolutely certain whether I’ll proceed with any further Full Court appeals within this court at this point in time, but may choose to take them out of this court and take them across to the Federal Court.” 

27. I comment again that this is inconsistent with someone attempting to rebut the allegation that they should be regarded as vexatious.

28. Mr Garrett in his submission then moves back to the topic of Evajade and questions of standing in relation to a notice for specific directions that he took out in Action No. 127 of 2004.  That was the subject of judgments by both Judge Lunn and Vanstone J.  Mr Garrett asserts that the master was trying to “gag” him and that Vanstone J “chose to act in wilful blindness in respect of an affidavit” which he had sought to place before the court.  In the notice of appeal which is exhibited to Mr Garrett’s affidavit he seeks to re-run almost every point which he has made in relation to the various matters raised since the time he has been in dispute with NAB.  All of these matters have been the subject of decisions by judges and masters of this court on previous occasions.

29. Mr Garrett then refers to an affidavit filed by an officer of NAB, Timothy French, which sets out the total indebtedness including interest as at 30 January 2006 amounting to $15,280,202.25.  Mr Garrett asserts that the solicitors assisting in the preparation of this affidavit are involved in a criminal contempt. 

30. Mr Garrett then argues that he is not in fact bankrupt and has set out in some detail in a notice of appeal to the Federal Court which he asks me to take into account, that the sequestration order was made in error.  The basis of the suggested error is that he has in fact paid all his debts prior to the time the order was made.  That again revisits the tender by him of the Bill of Exchange referred to earlier.

31. Mr Garrett then alleges that Judge Burley “has effectively silenced each of his new applications”.  I understand that this results from his attempt to file an all-encompassing counterclaim which covers the field of all disputes.  This is a similar document to the “Omnibus” referred to earlier.  Judge Burley in his reasons dated 6 September 2006, states at [13]:

    “They are statements of claim sought to be introduced either in existing actions or in a new action and a counterclaim which Mr Garrett seeks to file in an existing action.  There is a common theme running through all of the documentation; the proposed statements of claim and counterclaim constitute an abuse of process with the court because they seek to re-litigate matters that have already been decided and are now res judicata; from an objective point of view they may be said to be frivolous or vexatious because they have the effect of harassing the existing or proposed defendant.  It is also the case that significant portions of the proposed pleadings are incoherent in the sense that the defendants and proposed defendants could not gain a proper understanding of the nature of the case brought against them.  They are replete with assertions of fraud and illegal conduct unsupported by any particulars.”

32. Strangely, Mr Garrett seeks to use the comments made by Judge Burley to support his contention that he is not a vexatious litigant. 

33. Mr Garrett then alleges fraudulent and criminal behaviour.  Mr Garrett makes those allegations in respect of NAB and its officers and calls in aid of that submission a “Today Tonight” episode which he asked me to look at.  As I have indicated I did look at it and, in my view, it is completely irrelevant in relation to any of the matters relating to Mr Garrett’s conduct in the various actions which are being considered in this matter.

34. Up to this point it can be seen that Mr Garrett has not really attempted to answer the allegations made against him by NAB.  Therefore at the conclusion of his oral submissions, including his references to the affidavit and the exhibits to the affidavit, I suggested that Mr Garrett might like the opportunity of considering the submissions that had been made by NAB and gave him the opportunity of making such submissions by way of a reply in writing.  Mr Garrett prepared a document which unfortunately did not really deal with the issues regarding the main thrust of the submissions made by NAB.  It was again an attempt to re-agitate all of the issues the subject of the application by NAB.  He concludes his written reply by stating:

    (i)I will have my say one way or the other

    (ii)I will not be gagged by certain members of this authority

    (iii)I stand possessed of English bloodlines and if I fail to obtain justice in this country then I will seek justice in the higher courts to which I have legal rights

35. Reading between the lines of all of Mr Garrett's submissions to me, he is asking the court to find that he had reasonable grounds for taking out all of the various actions and applications which are later described.  He is asking the court to find that his actions could not possibly be vexatious because it was reasonable for him to proceed in the way he did because at all times he was attempting to redress the perceived injustice imposed upon him by the actions of NAB and others.

36. He would have it that he was on a learning curve and that therefore a lot of the actions he took were reasonable in the circumstances of him representing himself.  It seems that at the heart of all his attempts to re-litigate issues clearly decided against him was a misunderstanding that in his view he had the right to continue to challenge the many rulings made against him regarding his lack of standing before the court.

37. He asked me as a result to act as a general reviewer of all of the matters in this court previously decided by either masters or judges.  He said this was necessary because the matters had never properly been litigated and that therefore, he had been denied natural justice.

38. Hence his "Omnibus Claim" to bring to the attention of the court all the perceived injustices rendered upon him and, at the same time, allow him to vent his frustration against all those individuals and entities that had impeded his progress by their attempts to enforce their legal rights.  His intention was to really run a Royal Commission type of review into all "Garrett matters".

    The Law

39. This application is brought by NAB pursuant to s 39 of the Supreme Court Act1935 (SA).

40. The application of the law in relation to s 39 of the Act is relatively clear. There have been three recent decisions in this court regarding the provisions of s 39 of the Act. (See Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, Attorney-General for the State of South Australia v Piepkorn [2005] SASC 425 and Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28)

41. Section 39 provides:

    (1) If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:

    (a)     an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without leave of the court;

    (b)     an order staying proceedings already instituted by that person.

    (2) Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.

    (3) An order under this section remains in force (subject to the variation by the court)

    (a)     if a period for the operation of the orders is fixed until the expiration of that period or the revocation of the order (whichever first occurs);

    (b)     if no such period is fixed until revocation of the order

    (4) Where an order is made under this section, a copy of the order must be published in the Gazette.

    (5) For the purposes of this section, proceedings are vexatious

    (a)if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or

    (b)     if instituted without reasonable ground.

    (6) In this section –

    “prescribed court” means –

    (a)     the Supreme Court;  or

    (b)     any other court of the State;  or

    (c)     the Workers Compensation Tribunal;  or

    (d)     any other tribunal of the State prescribed by the regulations;

    “proceedings” means civil or criminal proceedings instituted in a prescribed court.

42. In Mitsubishi Motors Australia Ltd v Kowalksi Bleby J determined a similar application brought pursuant to s 39. His Honour , at [17], stated that:

    The issue to be determined in these proceedings is whether the defendant has persistently instituted vexatious proceedings, and in particular, whether the many proceedings instituted by the defendant have been instituted without reasonable ground. That is an objective question to be determining by examining the number and nature of proceedings, which have been instituted by the defendant. (My emphasis)

43. The section requires the court to consider the frequency and the nature of proceedings instituted by the person the subject of the s 39 application.

44. It is important in these circumstances to consider the proper interpretation of the word “persistently”. The word “persistently” is not defined within the Act. It was held by Perry J in A-G for the State of South Australia v Burke that the term “persistently” should be given its ordinary meaning.  More recently, Bleby J in Mitsubishi Motors Australia Ltd v Kowalksi, at [277] approved the following statement of the New Zealand Court of Appeal in Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 where it was stated, at [21], that:

    What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted.  A litigant may be said to be persisting in litigating through the number of separate proceedings he or she bring is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating of justifying.  The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.

1. As a result I will consider the number, character and reasonableness of each of the proceedings instituted. In this matter, many of the issues arise from interlocutory applications taken out by Mr Garrett in the course of the substantive proceedings. Section 39(6) of the Act provides the definition of the word “proceedings” for the purpose of this section. It provides that “proceedings means civil or criminal proceedings instituted in a prescribed court”. In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J considered whether interlocutory proceedings taken in the course of an action are “proceedings” for the purpose of the New South Wales equivalent of s 39 of the Supreme Court Act 1935 (SA).  I agree with and respectfully adopt the words of Roden J, where his Honour states at 492 that:

   In so far as they are interlocutory proceedings in a pending action, they are not, in my view, “proceedings instituted” for the purpose of s 84.However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if thy are properly commenced by notice of motion in existing proceedings…it is the substance of the matter rather than the form that must be considered.

2. If interlocutory proceedings seek substantive relief, or seek to bring an additional party into the existing proceedings, I will consider them as “proceedings” for the purpose of s 39 of the Act. I will now turn to consider the merits of the application by NAB by reference to the various stages in each of the five actions included in the application.

   Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd – SCCIV-04-127

3. In relation to Action No. 127 of 2004, I will summarise the actions taken by Mr Garrett at different stages. Because of the sheer volume of the individual applications within the files I will attempt to sub-divide the applications into different stages. Within this action there are a number of applications and appeals which do not strictly fall within the definition of “proceedings” for the purpose of s 39 of the Act. The applications, which fall outside of the definition of “proceedings”, I will consider as part of the factual background to explain how the Garrett matters have progressed to this point. They flavour all the applications, appeals and actions which I must consider. I will determine whether the proceedings have been instituted to harass, annoy, cause delay, or for any other ulterior purpose or without reasonable ground.

4. In addition there are numerous proceedings filed by Mr Garrett purportedly on behalf of various persons and corporate entities, which I will also consider to determine if they have been instituted vexatiously by Mr Garrett.

5. I will, therefore summarise the effect of Mr Garrett’s various actions and appeals at each stage of Action No. 127 of 2004.

   (i)     The initial application and subsequent hearings up to the Full Court decision on 14 September 2004.

6. After instituting the action against NAB, Mr Garrett in a series of applications, sought orders which essentially related to attempts to stay the order for possession over Springwood Park.  This order for possession had been made by Besanko J on 26 July 2004.  Many of the orders sought were not ultimately pursued but some, such as a stay of the possession order, were eventually dismissed by the court.

7. On 30 July 2004 Mr Garrett brought an application seeking amongst other things that various non-parties pay approximately $73M into court.  This amount would apparently cover NAB's ultimate liability to Mr Garrett as assessed by him and was to compensate him for all the wrongs inflicted on him by NAB.  Five days later, on 3 August 2004, Mr Garrett filed another application, again seeking a stay of the order for possession, the joinder of various parties and the removal of the receiver.

8. In my opinion, the nature of these applications is such that they should be considered “proceedings” for the purpose of s 39 of the Act. They seek substantive relief and in particular they attempt to bring an additional party into the proceedings and also to remove a party. (See Attorney-General v Wentworth (1988) 14 NSWLR 481 at 481)

9. An appeal to the Full Court against the order made by Besanko J was lodged on 9 August 2004.  It was heard by the Full Court on 14 September 2004 when the appeal was dismissed.  Reasons for the dismissal of the appeal were published by the Full Court on 4 November 2004.  (See Andrew Garrett Wine Resorts Pty Ltd & Ors v National Australia Bank Ltd [2004] SASC 348; (2004) 236 LSJS 342.

10. Within three days of lodging his appeal to the Full Court Mr Garrett began a series of applications seeking orders, inter alia, that the original order be stayed, that NAB discharge its mortgages over Springwood Park and further that both the accounting firm KPMG and the solicitors for NAB pay an amount of $73M into court. KPMG had been involved, by NAB, in certain insolvency matters involving the Garrett group. He also sought to join numerous parties who were tenants of the Springwood Park property. After these matters were adjourned on several occasions they were not finally pursued. These are also proceedings for the purpose of s 39 of the Act.

11. On 18 August 2004 Mr Garrett filed 3 separate applications.  One application was made pursuant to the Real Property Act1886 (SA) and sought an order for possession of Springwood Park in favour of Garrett International Investments. This application has not been pursued. At the same time a further injunction was sought relating to royalties allegedly due to Mr Garrett and again he sought a release from the order for possession. It is my opinion, that considering the relief sought in the applications, these applications should be considered proceedings for the purposes of s 39 of the Act.

12. On 20 August Mr Garrett took out an application for judicial review of the decision of Besanko J. This appears never to have been concluded. This is a proceeding for the purpose of s 39 of the Act.

13. Also on this day Mr Garrett filed an application seeking the discharge of NAB's mortgages and, amongst other orders, an order that NAB be held in contempt of court for overcharging of interest.  I also consider these as proceedings for the purpose of this application.

14. I point out that all of these actions described to date were taken out after the appeal to the Full Court was lodged and essentially related to the actual orders that were being appealed against.  In my view there was no purpose other than to harass and annoy NAB and I find Mr Garrett's actions were vexatious.

15. On 23 August 2004 Mr Garrett again sought orders that that NAB pay to him, in addition to an amount of $1.6M, an amount of $100M into a Suitor's Fund in anticipation of a successful damages claim against NAB.  He also sought to have NAB's securities released.

16. On 30 August 2004 he sought again to have NAB's securities released.  I do not consider the application filed on 30 August to seek any substantive relief and therefore I do not consider it a proceeding for the purpose of this application.  However, that is not the case with the application made on 23 August 2004.  It was a proceeding in my view.

17. On 14 September 2004 the Full Court dismissed the appeal from the orders of Besanko J.  The very next day Mr Garrett took out an application again seeking a stay of the original order for possession.  He also sought an order requiring NAB to purchase "the royalty stream".  The royalty stream was the subject of the Berringer Blass Deed of Settlement.

18. Up to this point therefore it can be seen that Mr Garrett, although legitimately lodging an appeal to the Full Court from the original decision of Besanko J, then set about using whatever means he could to make life difficult for NAB by taking out a series of applications, none of which were necessary in view of the pending appeal, and all of which caused NAB to engage lawyers and pay for legal advice.  As I have indicated many of these matters, the subject of the applications, were not ultimately pursued.  However, the fact is that they were obstructive to the smooth running of the proceedings which involved an appeal to the Full Court.  The fact that Mr Garrett chose to institute all these applications when the appeal was on foot is in my view again illustrative of the mindset of a person insistent on harassing  and impeding NAB.

    (ii)    Amendments to statement of claim

19. Following the decision by the Full Court and the application the following day to stay the order for possession, Mr Garrett was declared bankrupt on 24 September 2004. 

20. On 14 October 2004 Mr Garrett filed an amended statement of claim which was then further amended a few days later.  On 8 November 2004 an application was made which sought to restrain NAB from exercising its power of sale and in addition seeking an order, again attempting to set aside the order for possession.  This application was filed on behalf of Mrs Garrett and forms part of the factual background.  The application was dismissed by Gray J on 23 March 2005. 

21. Soon after, on 22 December 2004 Mrs Garrett filed her own petition for bankruptcy. 

22. On 11 January 2005 Mr Garrett then took out application seeking orders that NAB, Johnson Winter & Slattery, the solicitors for NAB, and counsel for NAB be held in contempt of court for alleged breaches of undertakings made earlier by counsel.  Notwithstanding the earlier history of the matter, he again sought to reinstate the earliest order made by Besanko J on 5 March 2004 and sought also to stay the order for possession which had been confirmed by the Full Court.  This application which involved all of these matters was dismissed by Gray J on 1 November 2005. 

23. In that decision Gray J on the same day, namely, 1 November 2005, also dismissed further applications made by Mr Garrett on 14 January 2005 in which Mr Garrett was again seeking orders that NAB, Sims Partners, Johnson Winter & Slattery and counsel for NAB be held in contempt of court for breaches of undertakings made by counsel on three nominated dates, two of which were covered by the earlier application taken out three days prior to this one.  Once again, Mr Garrett sought reinstatement of the orders of Besanko J and again sought a stay of the order of possession.  This application was similar to the application made three days earlier.  There is no obvious reason why the further application was necessary.

24. As I have indicated Gray  J dismissed both the applications of 11 January 2005 and 14 January 2005 in his decision on 1 November 2005.  There is simply no valid explanation proffered by Mr Garrett as to why he would have, within three days of the first application, taken out a further application in almost identical terms except that the second application sought to involve Sims Partners  as well.  Sims Partners had been appointed as agents of NAB when the bank took possession of Springwood Park as mortgagee.  In the second application dated 14 January 2005, the orders sought were more extensive and included an order that NAB pay the costs of the first and second plaintiffs together with damages claimed by the first and second plaintiffs, namely, Resorts and Averil Garrett.

25. It is my opinion that these applications are an obvious attempt to harass NAB and to re-litigate the possession findings made by Besanko J on 26 July 2004 and upheld by the Full Court on 14 September 2004. Mr Garrett, again, attempted to include new parties and new causes of action within the ambit of Action No. 127 of 2004. I consider these interlocutory applications as proceedings for the purpose of s 39 of the Act as they seek to reverse, qualify or re-litigate rulings or determinations previously made. (See Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [56] per Bleby J)

26. Following in chronological order, the time elapsed in which Mrs Garrett's trustee could elect to prosecute Action No. 127 of 2004 on 25 February 2005.  The trustee made no election to further prosecute the action.

27. Then on 4 March 2005 Mr Garrett took out an application seeking orders that the deed of discharge of the Rothschild mortgage and NAB's two mortgages in respect of Springwood Park be declared void.  I will deal with the history of the Rothschild mortgage later in these reasons.  On 18 May 2005 Judge Lunn dismissed this action and awarded costs against Mr Garrett.  Again, it is my opinion that these applications should be considered proceedings for the purpose of this application.

28. On 23 March 2005 Gray J dismissed an application taken out by Mrs Garrett to once again attempt to set aside the order for possession in respect of Springwood Park.  (See Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd (No 2) [2005] SASC 105; (2005) 239 LSJS 56)

29. It seems apparent that all Mr Garrett was seeking to do, in this whole series of applications, was to re-litigate all matters relevant to the possession order relating to Springwood Park.  These issues had been finally determined by the Full Court decision on 14 September 2004.  It is my conclusion that this whole series of applications were proceedings which were instituted vexatiously.

    (iii)   Attempt to consolidate actions

30. As part of the factual background on 24 March 2005 Mr Garrett took out an application to consolidate Action Nos.127 of 2004, 1767 of 2003 and 57 of 2005.  This application was dismissed by Judge Bowen Pain on 17 June 2005 and costs were awarded against Mr Garrett. 

31. Then on 4 April 2005 Mr Garrett took out an application which ultimately, he has not pursued.  In that application he sought an order that all affidavits and evidence in Action Nos.57 of 2005 and 247 of 2004 be introduced as evidence in Action 127 of 2004 and he also sought leave to represent Andrew Garrett Wine Resorts Pty Ltd and Mrs Garrett.  At the same time he sought to vary the Mareva order which had been made earlier and he further sought the release for himself, Mrs Garrett, Andrew Sandow and John Jackson from undertakings which had been given to the court.  Both Mr Sandow and Mr Jackson were at one time colleagues of Mr Garrett and Mr Sandow held the position of a director of both Evajade and Agwater at different times.  He further sought an order that NAB pay costs and damages. 

32. As I have indicated that application was not pursued but, it was the genesis of later submissions to be made by Mr Garrett to this effect, namely, that the court must look at every word in every paragraph of every affidavit which has been filed in every action involving Mr Garrett.  That was a catch cry which was echoed many times during Mr Garrett's submissions before me and which appears from time to time in affidavits and written submissions filed by him.  It is an essential part of his mantra claiming a denial of justice.

33. On 4 April 2005 Mr Garrett sought orders discharging NAB's two mortgages over Springwood Park but he did not pursue that particular application.  On the same day he issued a Notice to Admit directed to NAB and others but this notice was struck out by order of Judge Lunn on 7 November 2005.

34. Three days after the applications of 4 April 2005, on 7 April 2005 Mr Garrett took out a further application seeking leave to appeal from a decision of Gray J on 23 March 2005 which dismissed Mrs Garrett's application for leave to appeal.  He also sought an order that evidence in Action No. 1767 of 2004 be admitted as evidence in this action and that NAB pay costs and damages.  Gray J dismissed this application on 12 May 2005.

35. A few days later on 11 April 2005 Mr Garrett took out an application seeking leave for a number of persons and entities to intervene and to authorise Mr Garrett to conduct proceedings on their behalf.  He did not pursue that application.  On the same day he took out another application, this time seeking leave to re-open the Full Court decision and again seeking the intervention of a number of entities to be represented by him.  He also sought at this time to join NAB, Johnson Winter & Slattery and counsel for NAB together with the receivers in the action and sought costs and damages against them all.  Gray J dismissed this application on 12 May 2005.

36. On the same day, 11 April 2005, Mr Garrett made a further application seeking orders that NAB, its agents, counsel, solicitor and the receivers pay costs and damages.  He did not pursue this application.  It seems that it was issued effectively as a duplicate for the earlier application he issued on the same day, but for what purpose is unclear.

37. On 26 April 2005, Mr Garrett took out an application which he entitled "Waiver of Legal Privilege".  In this application he sought leave to serve a notice to admit which was a later notice but in similar terms to the one which was struck out by Judge Lunn earlier.  It appears that in this application he was really seeking an order pursuant to s 125 of the Evidence Act1929 (SA) that there be a waiver of legal privilege between Johnson Winter & Slattery, NAB, Sims Partners and McGrath Nicol+Partners but he did not pursue that application. McGrath Nicol are the former corporate recovery practice of KPMG. They too were involved in the insolvency of the Garrett Group of companies and in particular Resorts.

38. To complete this chapter of events Gray J dismissed Mr Garrett's application to seek leave to re-open the Full Court decision regarding the possession order and further to set aside the decision of 23 March 2005 dismissing Mrs Garrett's application to set aside the possession order. 

39. It is my view that all applications made during this period should be considered “proceedings” for the purpose of this application by NAB under s 39 of the Act. The applications involved repeated attempts by Mr Garrett to re-litigate issues which had been determined against him and his interests, and in my view were vexatious. I find that in this series of applications that he has persistently instituted vexatious proceedings.

    (iv)    Winding up of Andrew Garrett Wine Resorts Pty Ltd

40. On 17 May 2005 the Supreme Court ordered that Andrew Garrett Wine Resorts Pty Ltd be wound up. This was followed by an interlocutory application for leave for Mr Garrett to manage the corporation pursuant to s 206G of the Corporations Act2001 (Cth). This application was dismissed by Judge Bowen-Pain on 8 July 2005 and Mr Garrett was ordered to pay NAB and ASIC's costs of the application.

41. Then on 20 July 2005 Mr Garrett took out a second application for leave to appeal against the earlier decision of Gray J of 23 March 2005 and at the same time sought an extension of time to lodge the appeal.  This application is in virtually identical terms to the one taken out on 7 April 2005 which was dismissed by Gray J.  When the matter came on for hearing it was withdrawn with an order that Mr Garrett pay costs. 

42. Notwithstanding that Mr Garrett then took out yet a third application for leave to appeal the earlier decision and again sought an extension of time.  Again, Mr Garrett abandoned this application which was dismissed by Gray J on 12 September 2005 when once again Mr Garrett was ordered to pay the costs.

43. These applications help to provide a factual context within which Mr Garrett was seeking to advance his interests. While neither application was pursued, they demonstrate Mr Garrett’s attempts to challenge various findings made by members of this Court and his inability to accept the finality of any decision.

44. I regard both the second and third attempts to appeal out of time as proceedings for the purposes of s 39 of the Act. I also regard them both as vexatious.

    (v)     The Rothschild Mortgage

45. After NAB obtained its order for the possession of Springwood Park, and so that it could proceed to sell the property, it needed to have the discharge of a first mortgage on the titles to Springwood Park registered.  The first mortgage was granted to N.M. Rothschild & Sons (Australia) Ltd and has been referred to in argument as the Rothschild mortgage.

1. NAB in fact held the executed discharge of the Rothschild mortgage but not the duplicate memorandum which had earlier been passed from Rothschild to Mr Garrett.  He refused to hand it over when requested to do so by the solicitors for NAB.

2. NAB therefore had to make application for an order under the Real Property Act1886 that the discharge could be registered despite the fact that the duplicate was not produced.

3. Mr Garrett was ordered by Gray J to bring the duplicate to court by a certain date.  He did not do so.  Gray J proceeded to hear the application by NAB and gave judgment.  On 3 August 2005 Gray J ordered that the Deed of Discharge in relation to the Rothschild mortgage be registered despite the fact that the duplicate memorandum of mortgage was not produced.  (See Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd (No 6) (2005) 92 SASR 419.) This of course paved the way for NAB to finally dispose of a clear title to the Springwood Park property.

4. Not surprisingly, this resulted in a series of applications almost immediately.  On 17 August 2005 Mr Garrett took out an application seeking an extension of time within which Evajade Pty Ltd could comply with a subpoena previously issued by NAB following the decision of Gray J on 3 August 2005.  The application also sought to restrain NAB from discharging the Rothschild mortgage over Springwood Park.  The extension of time application was finally abandoned by Mr Garrett and the application for the restraint sought by him was dismissed on 22 August 2005 with once again NAB obtaining an order for costs against Mr Garrett. 

5. On 28 August 2005 Mr Garrett took out further applications seeking orders, again attempting to reinstate the Rothschild mortgage in respect of the Springwood Park property and to allow certain other parties to intervene in the action.  He also sought a declaration that the Rothschild deed of discharge be declared void and that NAB be found "in breach of contracts of finance".  This application was also abandoned by Mr Garrett and finally dismissed by Gray J with costs against Mr Garrett on 12 September 2005.  It is again obvious that Mr Garrett was attempting to, without any prospect of success, introduce new parties and additional causes of action.

6. A day later, on 29 August 2005, Mr Garrett made an oral application, apparently on behalf of Mrs Garrett, to re-open her previous application to set aside the order for possession of Springwood Park.  This was again dismissed by Gray J with an order for costs against Mr Garrett on 12 September 2005.

7. Continuing the chronology, on 20 September 2005 the liquidators of Andrew Garrett Wine Resorts Pty Ltd discontinued Action No. 127 of 2004.  On 30 September 2005 Mr Garrett took out an application seeking production of the duplicate certificates of title of Springwood Park.  He also sought an injunction preventing NAB from any further dealings with the Springwood Park property and sought a direction that NAB and its solicitors provide him with the precise dollar amount required to enable NAB's mortgages to be discharged.  This was apparently a last ditch attempt at convincing NAB that he was fighting to the bitter end on this issue.

8. On 17 October 2005 Mr Garrett took out an application once again seeking orders to reinstate the Rothschild mortgage and once again seeking an order for possession of Springwood Park, this time in favour of Evajade Pty Ltd.  He sought to be substituted as plaintiff in the action in lieu of Andrew Garrett Wine Resorts Pty Ltd.  He again sought for the deed of discharge of the Rothschild mortgage to be declared void and he sought leave for the intervention of the company Evajade and that Andrew Sandow be given leave to represent Evajade.  He also sought an order claiming that NAB was in breach of "contracts of finance" and he sought costs and damages against NAB.  This application along with the one made on 30 September 2005, was dismissed by Judge Lunn on 28 October 2005 with costs to be paid both by Mr Garrett and Mr Sandow.

9. In his remarks, Judge Lunn stated that on the pleadings as they existed there were no issues left for determination other than the payment out of moneys in court and possibly questions of cost.  Further, Judge Lunn stated that Mr Garrett’s attempts to substitute himself as a plaintiff and to be given leave to file an amended statement of claim were meritless.

10. On 7 November 2005, the same day that Judge Lunn published his reasons, a further notice to admit was filed and directed to NAB.  It seems that this notice was actually filed on the same day that Judge Lunn dismissed previous notices to admit and when he found that Mr Garrett had no standing in Action No. 127 of 2004 other than as a defendant to the stayed counterclaim.  Judge Lunn found that there was no issue between Mr Garrett and NAB to which the notices could be relevant.  This forms part of the factual background from which I will proceed.

11. On the same day, that is, 7 November 2005 Mr Garrett took out an application for orders that NAB produce duplicate certificates of title to Springwood Park, that NAB be injuncted from any further dealings with Springwood Park pending an application for special leave to the High Court and once again that NAB and its solicitors be required to provide a precise figure to discharge the mortgages over Springwood Park.  Again, Mr Garrett attempted to challenge the "possession finding".  I regard these applications as proceedings designed for the purpose of harassing NAB.

12. Some four days after this application, on 11 November 2005, Mr Garrett filed an application for joinder of himself in his alleged capacity as trustee for the Andrew Garrett Family Trust Number 3.  Again, Mr Garrett was attempting to introduce new parties to the action and to indirectly challenge the findings already made regarding his capacity to appear before the Court in these matters.

13. On 13 January 2006 Judge Lunn dismissed both the application made on 7 November 2005 and also on 11 November 2005, with costs against Mr Garrett. It was on this occasion that Judge Lunn ordered that no further application by Mr Garrett could be filed unless he first paid into court the sum of $5,000 on account of taxed costs in favour of NAB payable by reason of the costs order made on the various dismissals of the earlier applications.  In particular Judge Lunn ordered that unless, and until, the stay on the counterclaim against Mr Garrett was lifted he was not to be given status in the action and was not to be permitted to file any further documents or appear in that capacity other than on an appeal from those orders.

14. On 21 November 2005 Mr Garrett took out a further application seeking orders once again to attempt to reinstate the Rothschild mortgage over Springwood Park, seeking leave to represent Evajade, seeking an order that the deed of discharge of the Rothschild mortgage be declared void, claiming a breach of contract and damages against NAB and this time attempting to join real estate agents Toop and Toop to the action.  This application was not pursued by Mr Garrett.

15. Mr Garrett's actions in this series of applications involved raising substantive issues and introducing new parties and should be considered as proceedings for the purpose of s 39 of the Act. I regard each of them as vexatious.

    (vi)    Application to join further parties

16. Mr Garrett then sought by application of 21 November 2005 to join further defendants including particular nominated solicitors employed by Johnson Winter & Slattery and counsel for NAB together with other persons.  The application was dismissed by Judge Lunn on 13 January 2006 with an order for costs against Mr Garrett.

17. Within two days Mr Garrett made an application on 23 November 2005 seeking orders that he be joined as a party to the action in various capacities, again seeking leave for him to represent Evajade and, for Evajade and himself to be substituted as plaintiffs in the action.  Judge Lunn, again, dismissed this application in his decision of 13 January.  I find that these applications fall within the definition of proceedings for the purpose of this application brought by NAB.

18. On 24 November 2005 Mr Garrett lodged a notice of appeal to the Full Court against the decisions Gray J made on 23 March 2005 and 12 May 2005.  There is no need to point out of course that these notices of appeal were well out of time and no further action was taken by Mr Garrett in relation to setting the matters down for hearing.  No appeal books have ever been prepared.

19. On the same day Mr Garrett took out a further notice of appeal seeking to appeal from the decision of Judge Lunn made on 7 November 2005 which struck out the notices to admit.  This appeal, along with others, was dismissed by Vanstone J on 8 February 2006 with an order for costs against Mr Garrett.

20. Again, on the same day there was a notice of appeal from the decision of Judge Lunn of 28 October 2005 in which earlier applications had been dismissed.  Vanstone J dismissed the notice of appeal in the same decision.

21. In the reasons published by Vanstone J, her Honour held that that all appeals from the various decisions of Judge Lunn should be dismissed on the broad basis that the notices of appeal were not filed by any party to the various actions and that Mr Garrett was found not to have any valid standing.  Again, Mr Garrett attempted to challenge the possession findings, the Stamp Duty findings, the Rothschild findings and also the Standing finding.  This demonstrates another failure to accept the finality of a decision made by a member of this Court.  Many of these findings had already been the subject of numerous applications, which in substance were appeals of sorts and when dismissed were then the subject of subsequent notices of appeal.  The notices of appeal, filed on 24 November 2005, should be considered as proceedings in my opinion.

22. On 13 December 2005 Mr Garrett took out a separate application for an extension of time within which to appeal the decisions of Gray J from 23 March and 3 August and two further decisions of Gray J on 12 May 2005. These were also dismissed by Vanstone J on 8 February 2006. These applications were clearly filed to harass NAB or to cause delay. In my view they are proceedings for the purpose of s 39 of the Act and they demonstrate Mr Garrett's stubbornness and refusal to accept any decision.

23. On 15 December 2005 Mr Garrett took out an application seeking an injunction, once again attempting to restrain NAB from exercising its power of sale over Springwood Park. He also applied for an order that Evajade, as trustee for the Holy Grail Property Trust No. 2, another Garrett entity, be entitled to possession of the title deeds to Springwood Park. Judge Lunn dismissed the main part of this application on 13 January 2006 with an order for costs against Mr Garrett. Mr Garrett has not pursued the balance of the application. On the same day, that is, 15 December 2005, he also sought an order that all securities given by the Garrett interests, by way of guarantees and mortgages over real property, be declared void and an order that NAB pay unspecified damages to the plaintiffs. This matter has not been heard because of the embargo placed upon Mr Garrett by Judge Lunn's order, requiring him to pay $5,000 into court. Neither application filed on 15 December 2005 was ultimately heard. They are, in substance, "proceedings" for the purpose of s 39 of the Supreme Court Act1935 (SA). I regard each of the applications as vexatious.

    (vii)  Settlement of the Sale of Springwood Park

24. Settlement took place on 6 January 2006.  This resulted in a renewed flurry of applications.

25. On 9 January 2006 Mr Garrett took out an application for the joinder of S.P. Estates Pty Ltd, the purchaser of Springwood Park, to be joined in the action.  Nothing further has happened in this regard due to the fact that Mr Garrett had still not paid the $5,000 into court.

26. On 11 January 2006 Mr Garrett took out an application seeking an order that an unregistered memorandum of transfer in respect of Springwood Park be registered upon payment of stamp duty.  At the same time he sought orders that a Bill of Exchange held in the Suitors Fund in the Supreme Court, be recognised as valid and a "legal bona fide payment of cash" into the Suitors Fund.  The Bills of Exchange have been the subject of a number of judgments, in particular a decision by Judge Lunn (See Andrew Garrett Wines Resorts Pty Ltd & Ors v NAB Ltd & Ors [2006] SASC 130) and are also the subject of a decision by me on 19 December 2006 (see Andrew Garrett Wine Resorts Pty Ltd & Anor v NAB Ltd & Ors [2006] SASC 381).

27. On 12 January 2006 Mr Garrett took out an application seeking orders that any money paid to NAB, Sims Partners or Johnson Winter & Slattery in respect of the tender process for Springwood Park be paid into an account of Mr Garrett acting as trustee of the Andrew Garrett Family Trust No. 3 and also an order setting aside NAB's power of sale over Springwood Park.  On 13 January 2006 Judge Lunn delivered judgment on five separate applications, which had been made by Mr Garrett.  The combined effect of these applications, if successful, would have been to make Andrew Garrett, or a company or trust which he claimed to represent, a plaintiff in the action which could then seek substantive relief against NAB as the defendant.  Each of the five applications expressly or impliedly required a determination of what, if any, standing Mr Garrett has in this action.  In effect Mr Garrett was challenging the previous “Standing findings”.  In the unreported judgment dated 13 January 2006 Andrew Garrett Wine Resorts Pty Ltd & Ors v National Australia Bank Ltd & Ors, his Honour Judge Lunn said, at [49] that:

    “These applications have been part of a relentless campaign by Andrew Garrett to thwart the sale of Springwood Park by the Bank.  While he is entitled to pursue any legal rights, which he may arguably have, he is not to be permitted to abuse the processes of the Court through pursuing many untenable applications, and thereby cause substantial expense to the Bank in defending them… In order to protect the Bank from costs for any further frivolous and misconceived applications in this action I direct that other than in respect of any appeals against these order, Andrew Morton Garrett is not permitted to file any further application in this action unless he first pays into Court the sum of $5000 on account of the taxed costs of the Bank of the applications which I have dealt with in these reasons.”

28. As a result of these orders, the three applications made during the first twelve days of January, which come within the definition of proceedings, have not been heard.

29. I agree with the comments of Judge Lunn set out above in his judgment dated 13 January 2006.  By this point and particularly since the sale of Springwood Park, Mr Garrett’s filing of applications had increased in intensity.  It was not unusual for Mr Garrett not to wait for an application to be heard by this Court, before filing, sometimes the same day, an additional application seeking to challenge various findings.  It was almost as if, by dint of numbers, he believed that he would finally get what he wanted.

30. On 23 January 2006 Mr Garrett lodged a notice of appeal against the decision of Judge Lunn.  Vanstone J dismissed the appeal on 8 February 2006 and ordered costs against Mr Garrett.  Mr Garrett sought leave to appeal which was refused by Vanstone J on 15 March 2006.

31. On 3 March 2006 Mr Garrett filed a notice for specific directions seeking orders that a Bill of Exchange held in the Supreme Court be presented to the Registrar of the Supreme Court. 

32. The history of the Bills of Exchange is contentious and has been the subject of many judgments.  Mr Garrett has long been on notice that this court would not accept the Bills of Exchange, which he has regularly attempted to proffer for various purposes.  Mr Garrett would not accept this and has proceeded to attempt to appeal the “Bills of Exchange findings” in this Court and also in the Federal Court. 

33. These attempts have been unsuccessful because they are meritless.  (See Garrett v Westpac Banking Corporation [2007] FCA 525.) Mr Garrett’s failure to accept the court’s decision and then his subsequent filing of the 3 March 2006 notice for specific directions and his appeal against the decision of Judge Lunn demonstrates a persistent institution of proceedings which are clearly instituted to cause delay and which are an attempt to validate Mr Garrett’s baseless assertions. The history of the “Bills of Exchange findings” clearly indicates the vexatious nature of the proceedings instituted by Mr Garrett on this topic.

34. Within the amended notice of appeal, which Mr Garrett filed when appealing the 10 May 2006 decision of Judge Lunn, he included a number of additional grounds of appeal which are not related in any way to the decision of Judge Lunn.  Included within the notice of appeal are allegations of misconduct against various members of the judiciary, allegations that by their very nature are scandalous and vexatious in the true sense.  Mr Garrett’s allegations within his amended notice of appeal also show his relentless crusade to demonstrate a perceived injustice.  The perceived injustice which he alleges results from his businesses and business assets being lost because persons and entities owed money by him have exercised their legal rights in recovering debts owed to them.

35. As indicated, on 19 May 2006 Mr Garrett lodged a notice of appeal against the decision of Judge Lunn regarding the bill of exchange and this is the subject matter of the decision given by me.  (See Andrew Garrett Wines Resorts Pty Ltd & Anor v NAB Ltd& Ors [2006] SASC 381.)

36. Mr Garrett attempted to appeal my decision dated 19 December 2006 to the Federal Court.  Mansfield J dismissed this appeal as incompetent on 13 April 2007 (see Garrett v Bransbury [2007] FCA 529). His Honour in his reasons, when considering the orders sought by Mr Garrett stated at [16] that:

    “The grounds for those orders…are entirely misconceived, discursive and inappropriate.  I shall not dignify them by going through them individually.”

37. This appeal to the Federal Court provides useful background to show the context within which Mr Garrett's matters have proceeded since the date on which I heard this application.  While Mr Garrett’s attempts to file this appeal have occurred since the hearing of this application, they demonstrate an intent by Mr Garrett to make various allegations which are unfounded and scandalous.  Such further actions can only be for the ulterior purpose to harass, annoy or cause delay. 

38. Since the hearing of this application Mr Garrett has continued to try and find a way around the order I made, with his consent, on 28 August 2006 preventing him from instituting or continuing proceedings until the determination of this application.  He has continued to email documents to my chambers in contravention of the order I made.  He has said that he will stop at nothing.  He has told me on numerous occasions that he will be heard one way or another and that he will not "allow the judiciary to close ranks upon him".  Mr Garrett is entitled to pursue any legal rights that he may have.  What he may not do is to continue to abuse the court system by the persistent filing of proceedings, which make unfounded and untrue allegations against NAB and those associated with it.

39. At some point Mr Garrett must accept that once he has pursued all avenues reasonably open to him in relation to his various claims that the findings and judgments made by the court are final. He cannot continue to file new proceedings, which are effectively an attempt to re-run proceedings and actions disposed of to date. He cannot continue to file proceedings under the guise of an appeal in which he makes unfounded and scandalous accusations against many officers of this court. This in itself, amongst other things, is an abuse of process and the court has an inherent jurisdiction to put a stop to the flagrant abuse and waste of court resources. Outside the scope of s 39 of the Act there is also the inherent jurisdiction of the court to prevent an abuse of process. It is for this reason that I intend again referring this matter to the Attorney-General pursuant to s 39(2) of the Act.

    Conclusion on Action No. 127 of 2004

1. Prior to Judge Withers dismissing the main action further applications had been taken out by Mr Garrett seeking leave to intervene and for leave for Mr Garrett to represent the Andrew Garrett Superannuation Fund.  This application was dismissed by Judge Withers on 29 September 2005.

2. Again, before the decision by Judge Withers on 25 November 2005, Mr Garrett took out a further application dated 15 November 2005 requiring NAB to produce duplicate certificates of title to Springwood Park to enable registration of the change in registered proprietor, injuncting NAB from any further dealings with Springwood Park and requiring NAB to provide a pay out figure for the discharge of NAB's mortgages over Springwood Park.  It was, in a nutshell, all of the Springwood Park litigation revisited.  Of interest on this occasion, the applications were filed by lawyers on behalf of Mr Garrett.  The application was dismissed by Judge Lunn on 30 November 2005 with an order for costs.

3. At the same time Judge Lunn also struck out a notice to admit which had been filed on 15 November 2005 and directed to NAB.  His Honour ordered costs against Mr Garrett personally.

4. On 13 December 2005 a notice of appeal against a decision of Judge Withers dated 25 November 2005 was lodged, and this appeal was dismissed by Vanstone J on 8 February 2006 with an order for costs against Mr Garrett.  At the same time Vanstone J dismissed a further ground of appeal against Judge Withers' decision which was an application for Mr Garrett to be joined as a party to the action in his purported capacity as trustee of the Andrew Garrett Family Trust (No. 3).  Her Honour, on 8 February 2006, dismissed the appeal against Judge Withers, and therefore dismissed the action as a whole.  On 13 February 2006 Mr Garrett sought leave to appeal from Vanstone J's decision which was refused on 15 March 2006. 

5. Vanstone J's reasons indicate that the applications were doomed to fail.  See Andrew Garrett Wine Resorts Pty Ltd & Anor v National Australia Bank Ltd & Other Actions (No. 2) [2006] SASC 75.)

6. I consider all of these applications as proceedings within the meaning of s 39 of the Act. They involve a range of substantive issues, new causes of action and a general re-run of proceedings finally disposed of by this Court. It is my view that the proceedings are both persistent and also vexatious.

   Phoenix Rising Vineyards Pty Ltd & Ors v The Registrar-General & Ors – SCCIV–05-423

7. On the same date that the summons for possession in Action No. 422 of 2005 was taken out Mr Garrett also took out a summons for possession in relation to Bulka Station.  At that time Gray J had not delivered judgment in Action No. 1767 of 2003 which related to the same subject matter.  On the face of it the proceedings are an abuse of the court processes.  It is not surprising therefore that on 25 November 2005 the proceedings were dismissed by Judge Withers as disclosing no cause of action with an order for costs against Mr Garrett.  In association with his application for possession of Bulka Station at the same time he took out an application for an injunction to prevent the defendants from dealing with Bulka Station and seeking again, as he did in Action No. 422 of 2005, the ability to use evidence and affidavits from the various other actions which he was running or had run.

8. An appeal against the a decision of Judge Withers was lodged on 13 December 2005 and this appeal was also dismissed by Vanstone J with an order for costs against Mr Garrett on 8 February 2006. 

9. Prior to that decision by Vanstone J, Mr Garrett had taken out a further application to have himself joined in the capacity of Andrew Garrett Family Trust No. 3 seeking a stay of a judgment of Judge Withers.  This series of applications had all been finalised in any event by the decision of Vanstone J on 8 February 2006.

10. On 23 January 2006 an application was taken out seeking to register a memorandum of transfer in respect of the titles of Springwood Park and claiming an injunction for further dealings with Bulka Station.  This application was refused by Judge Lunn on 9 February 2006 with costs against Mr Garrett.

11. On 13 February 2006 a notice of appeal was taken out against Vanstone J's decision but leave to appeal was refused in respect of this application on 15 March 2006.

12. It can be seen that in both Action Nos. 422 and 423 of 2005 the applications taken out, in the first instance, in relation to the possession of Springwood Park and in the second instance in relation to the summons for possession of Bulka Station, and the progress of both matters mirror each other.  Both were an attempt to re-litigate issues already finally determined and were clearly an abuse of the process of the court.  Whereas Action No. 422 of 2005 attempted to re-litigate Action No. 127 of 2004, Action No. 423 of 2005 was an equally transparent attempt to re-litigate Action No. 1767 of 2003.

13. Again, it is my view that the applications filed by Mr Garrett should be considered as proceedings for the purpose of NAB’s application.  For similar reasons as I have given in relation to Action No. 422 of 2005, it is my opinion that in this action Mr Garrett has persistently instituted vexatious proceedings

    Action No. 590 of 2006 – Andrew Morton Garrett v Sunburst Properties Pty Ltd (In Liq) (Receivers & Managers Appointed) & NAB

14. This action was brought by way of summons.  The defendants are Sunburst Properties Pty Ltd (In liquidation) (Receivers and Managers Appointed) and the National Australia Bank.  It appears to be an attempt to litigate the same issues as those contained within Action Nos. 127 of 2004 and 1767 of 2003.

15. In this action, Mr Garrett seeks possession of various parcels of land in the area of Langhorne Creek, known as Bulka Station.  In the summons filed on 19 May 2006, it is stated that:

    The plaintiff, Mr Garrett, intends to apply for certain orders pursuant to the affidavit material and oral submissions to be made and filed in this action and Action Nos. 127 of 2004 and 1767 of 2003.

16. On 31 May 2006, a solicitor acting for NAB caused a letter to be sent to Mr Garrett, inviting him to discontinue Action No. 590 of 2006.  The basis for this request was that Mr Garrett did not have valid standing to commence the action, and that the action was an attempt to re-litigate issues already decided by this Court.  In the final paragraph of this letter the author asserted that:

    Both before and after your bankruptcy, you and others controlled by or associated with you have persistently instituted vexatious and unmeritorious actions against us and our clients.  The new proceeding in Supreme Court Action No. 590 of 2006 is an example.  In addition to our request above to immediately discontinue the New Action, we are instructed to request that you desist from commencing any further actions or applications against our clients.

    We and our clients reserve our rights generally and, in particular, to make an application pursuant to section 39 of the Supreme Court Act 1935 and otherwise for an order prohibiting or from instituting or causing others to institute any further proceedings, and to stay existing proceedings.

17. On 6 June 2006 Mr Garrett responded to this letter.  In his response he declined to discontinue the proceedings and also made various allegations of impropriety on behalf of Johnson Winter & Slattery, the solicitors for NAB.  Mr Garrett also asserted that he was acting within his rights by initiating the new action.  He says:

    I seek to have action 1767 of 2003 and 127 of 2004 reheard from the beginning.  Rather than commence any new actions and having to refile all affidavits I seek to reopen the relevant cases on the basis of my standing as the Managing Trustee of the Andrew Garrett Group of Trusts, who have suffered damages as a consequence of your actions and those of your clients.

18. The first return date for the Summons for Possession and Notice for Specific Directions was 16 June 2006.  At the end of the hearing his Honour Judge Lunn adjourned the matter to allow Mr Garrett time to remedy some defects in the claim, including issues of standing.

19. On 21 June 2006 Sunburst Properties Pty Ltd applied to strike out the proceedings.  This application was made specifically returnable for 1 August 2006.  Mr Garrett did not proceed to file any supporting material.  On 31 July 2006 Mr Garrett filed a Notice for Specific Directions seeking an injunction to prevent NAB or Sunburst Properties from dealing with the titles to Bulka Station.  It was on this day, 31 July 2006 that the contract for the sale of Bulka Station settled.

20. This fact however, did not stop Mr Garrett from filing an additional Notice for Specific Directions on the day that the memorandum of transfer was registered at the Lands Title Office.  He sought an injunction to prevent the Registrar-General of the Lands Title Office from registering the transfer of the Bulka Station.

21. Finally on 4 August 2006, argument was heard in relation to Mr Garrett’s application for an injunction.  On 7 August 2006 Judge Burley delivered his reasons in which, at [35], he recognised the similarity in substance between this action and Action No. 1767 of 2003.  (See Garrett v Sunburst Properties Pty Ltd (In Liq) & NAB Ltd 7 August 2006, Supreme Court of South Australia (unreported).)His Honour refused to grant the relief sought by the plaintiff on the basis that Mr Garrett had failed to establish that there was a serious question to be tried and in any event that the balance of convenience required that the application be refused.  His Honour later stated, at [35] that:

    There is the additional reason that to grant the injunctive relief sought would be to act inconsistently with paragraph 10 of the Judgment in action 1767 of 2003.

22. I find that this action was merely an attempt to re-litigate issues, which had already been finalised in other actions.  It also evidences Mr Garrett’s failure to accept the finality of any decision made by this Court.

23. On 14 September 2006 Judge Burley heard a further application brought by the defendants seeking indemnity costs in respect of Action No. 590 of 2006.  In the course of the hearing Mr Garrett made the statement set out earlier at [65] of these reasons.

24. Mr Garrett’s attempts to re-litigate issues already determined against the same or related parties, the lack of any reasonable grounds or discernable cause of action in many of his assertions and his inability to accept the cost orders and judgments made against him, as well of the number of vexatious claims, lead me to the conclusion that the proceedings were vexatious proceedings and were persistently instituted. This action has already been dismissed by virtue of r 25.04 and thus would not be the subject of any order made pursuant to s 39 of the Act. It is however, entirely relevant to the application which has been brought by NAB. Mr Garrett’s assertion that he was going to go across to the Federal Court if the determination of issues in this Court was unsatisfactory shows once again Mr Garrett’s relentless crusade to re-litigate issues decided against him or his interests.

    Conclusion

25. Unfortunately for Mr Garrett, there is within the summaries of his many applications in the different actions set out above, evidence of the mind set of someone who shows a lack of balance in accepting how the cold hard realities of the commercial world operate when there are defaults in relation to repayment obligations.

26. Insofar as it is necessary I reject his argument that he has acted reasonably.  Mr Garrett is an intelligent man who has chosen to be stubborn and belligerent in taking on not only NAB but also many other professional people who have been discharging their duties to their clients.  He has also added to the list of those whom he attacks, various judicial officers who have made findings against him.

27. In my view he was treated with considerable patience and understanding by the court for a long time and in particular I refer to the many opportunities that he was given before Gray J who dealt with his constant applications and who was occupied for many months in the hearings.  The same also applies to Judge Lunn.

28. When things finally started to mount up against him and he started to get decisions which went against him Mr Garrett then chose to attempt to re-litigate the same matters under different guises. 

29. Again, when he perceived that the masters and judges of this court were regularly making findings against him he chose to transfer his attention to the Federal Court, where although there were some subtle differences, the same type of allegations were made and the same catchcries were heard.

30. I find specifically that he did not have reasonable grounds for instituting the many proceedings already referred to.  I find that he has persistently instituted these proceedings vexatiously. 

31. He has also been persistent in seeking redress from NAB by way of compensation to him in the sum of tens of millions of dollars as a means of his  attempt to restore his financial position and that of his businesses. 

32. Mr Garrett has clearly chosen to use the various proceedings, described by me earlier, as a means of venting his anger and frustration.  He has incorporated in his submissions both written and oral an overall allegation of corruption and conspiracy by NAB and its officers.  Those unfounded allegations have ballooned out to include many legal practitioners and accountants, including receivers and liquidators. 

33. There are no particulars given in respect of any specific allegations but only broad generalisations which are difficult to understand and almost impossible to rebut.

34. In conclusion, Mr Garrett's whole attitude in all of the various applications and arguments I have described are summarised by his statement referred to earlier in the reasons at, [73] to the effect that he will have his say one way or the other and will not be gagged by certain members of this Authority.

    Orders

35. Accordingly for the reasons I have given I make the declaration sought at [1] as set out earlier in these reasons, namely, that Mr Andrew Morton Garrett has persistently instituted vexatious proceedings against NAB.  I also make the orders proposed by NAB and as set out earlier at [1] of these reasons.  I further order that Action Nos. 127 of 2004 and 1767 of 2003 be dismissed subject to any outstanding costs orders.

    Inherent Jurisdiction

36. Apart from my findings which relate to the application pursuant to s 39(1) of the Act, it is a well-established principle that the Supreme Court, as a superior court of record, has an inherent jurisdiction to stay proceedings which are an abuse of process. (See Williams v Spautz (1992) 174 CLR 509; Commonwealth Bank Ltd v Heinrich [2003] SASC 322.) Mr Livesey submitted that in the alternative to s 39 of the Act, the Court has a very broad inherent jurisdiction to prohibit further interlocutory proceedings from being filed in the relevant actions. There have been a number of judges and masters of this court who have commented, in judgments delivered in the various actions, that Mr Garrett’s actions are an abuse of process. I have referred earlier to judgments of Vanstone J, Judge Withers and Judge Lunn, who have made such observations.

37. Mr Garrett in the course of his submissions did not address this issue.  He focussed primarily upon the reasonable belief he held when filing the various “proceedings”. Whatever belief Mr Garrett may have validly held, does not change the fact that his actions by their nature and quantity are an abuse of process.  They have been brought for an improper purpose that being, in my view, to place pressure on NAB by the sheer number of applications, allegations of fraud and other scandalous claims in the hope that NAB may accede to his monetary claims for damages and compensation.

38. Mr Garrett is an unrepresented litigant and as such, the court has a duty to ensure that it is patient and lenient in the standard of compliance which it exacts.  However, as it has been pointed out previously to Mr Garrett it does not mean that Mr Garrett can expect to obtain any advantage because he is unrepresented in these proceedings.  He is subject to the rules the same as any other litigant.  Further, it does not mean that Mr Garrett can use the Court as a “learning process” where, if he does not like the outcome in an action he can simply commence fresh proceedings with the same issues and same parties.

39. Mr Garrett has attempted to come before the court on behalf of several natural persons and various companies and trusts.  He has been told many times that he does not have any standing.  However, this has not stopped Mr Garrett.  He has continued to file applications and ignore the process and procedure of this Court.  This is the prime example of Mr Garrett’s actions amounting to an abuse of process.

40. The court system cannot continue to be abused in this way. Many of my observations in relation to s 39 of the Act are equally applicable when determining if I should exercise my discretion and permanently stay the proceedings. If I am wrong in finding that Mr Garrett has persistently instituted vexatious proceedings pursuant to s 39(1) of the Act I would, in the alternative, order a stay of the relevant actions in the exercise of the inherent jurisdiction of the court to prevent an abuse of process.

    Addendum to reasons

    The Attorney-General as Intervener

41. I now intend to say something about the intervention of the Attorney-General in his capacity as Intervener.

42. Prior to the hearing of the application I notified the Attorney-General of NAB’s application pursuant to s 39 of the Act. Mr Mackintosh, appeared on behalf of the Attorney-General and made an oral application seeking leave to intervene pursuant to s 9(2)(c) of the Crown Proceedings Act1992 (SA). I granted leave and a brief outline of argument on behalf of the Attorney General was provided for my consideration. The outline related to the proper construction of s 39 of the Act. It did not seek to deal with the merits of the application. The Attorney-General did not take a position in relation to the application brought by NAB pursuant to s 39 of the Act. Mr Mackintosh did however indicate that, depending on the outcome of NAB’s application, the Attorney-General may either seek to bring his own application pursuant to s 39 of the Act or alternatively he may seek liberty to apply to vary the scope of any prohibition imposed. In my opinion, it is appropriate now that I have heard and determined the application, for this matter to be referred again to the Attorney-General pursuant to s 39(2) of the Act. I therefore provide the following additional information for the Attorney-General. I make it clear that this material did not form part of my decision making process under s 39(1) of the Act.

43. Despite an order which I made restraining Mr Garrett from communicating with members of my chambers, Mr Garrett continued to send a large amount of correspondence to my chambers.  I have decided to include a summary of the correspondence which has continued to arrive in my chambers.  I have done this because it shows the extent of Mr Garrett's attempts to include all manner of people in the decision making process of this court.

44. As I have said, I have not relied upon this correspondence to reach my decision that NAB’s application pursuant to s 39 of the Act should succeed. I am not sure of Mr Garrett’s motivation in forwarding this material to my chambers but, it does help to provide continuing evidence of his determination to have his say, one way or the other and not to be gagged by members of this Authority. It also provides useful background for my decision to again refer the matter to the Attorney-General for his consideration. I do not believe that any order which I make in this application by NAB will prevent Mr Garrett from attempting to re-litigate any matters relevant to the Garrett interests which are outside the scope of the specific actions I have dealt with in this application.

1. Mr Garrett’s perceived injustice of the situation has resulted in Mr Garrett sending to my chambers copies of emails also sent to the Prime Minister of Australia, the Attorney-General of the State of South Australia, the Chief Justice of this Court, the Treasurer of Australia, the Minister of Foreign Affairs and Trade and other members of both the State and Federal Parliaments, amongst many others.  The tone of this correspondence causes me some concern.  The tone is antagonistic towards both the persons to whom Mr Garrett directs such correspondence and also to the persons referred to within the correspondence.  Mr Garrett also includes within the correspondence a number of scandalous and un-substantiated allegations.  Some of the correspondence attaches letters written by associates of Mr Garrett which also contain antagonistic tones.

2. Mr Garrett states in a letter dated 6 January 2007, written to the Premier of this State and copied to the Prime Minister, the Federal Treasurer and other ministers, that “your reference to a “boys club” in the Supreme Court of SA is pointless and does not get to the heart of the significant issues in that institution such as abuse of process, lack of procedural fairness, failure of administration of justice, megalomania and failure to act as advocates of unrepresented parties by male and female members of the judiciary alike”.  He goes on to state that:

   Such behaviour is in itself, criminal and a disgrace, it fails to deliver on the primary Supreme Court Rule that is inherent in the existing Supreme Court Rules and that I pointed out to you in my letter dated 30 August 2006.

3. Mr Garrett is saying that the interests of justice require all technical points to fail and he includes within these technical points his lack of standing.  He mentions bias in my judgment referred to earlier and then goes on to say:

   It reflects the continuation of the bias evidenced in the judgments of Vanstone J since January 2006 and still focuses on standing without considering merit, in the meantime the cost to the public purse has been extreme and another year of my life has been wasted simply because of the bias of the judiciary.

4. Mr Garrett goes on to say in this letter to the Premier:

   It is an indictment of the mindset of the judiciary and their willingness to make preformed views and take in to account the flurry of media around me.  I have always wished only for a fair hearing so that I could be done with my time in court.  I have been denied that hearing in spite of a statement of claim that is evidenced on all files and remains unheard.

5. Mr Garrett indicates that he is appealing my earlier decision to the Federal Court of Australia because he says “it is clear that the Supreme Court's view of bias, justice, procedural fairness, failure of administration of justice and mine differ".  Mr Garrett, it appears, is suggesting that his perceived injustice is the only interest, which the Court must protect.

6. In similar correspondence Mr Garrett also continues to declare the validity of the “Bills of Exchange” which are for the sum of eleven billion dollars.  He makes various suggestions in relation to both State and Federal issues in his letters.  The correspondence speaks for itself but reveals a hotch-potch of thoughts, complaints and aspirations.  Mr Garrett asserts in the letter that he is not being vexatious in these allegations and is not making these statements to harass or annoy.

7. An honest belief of having been wronged should not allow Mr Garrett to continue to abuse the court system, and occupy judges and masters for months at a time in listening to arguments which are thinly disguised attempts at re-litigating almost every issue which has been decided against him.

8. It is for these reasons, over and above my findings in relation to s 39(1), that I am again referring the matter to the Attorney-General for his consideration.