Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd

[2007] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ANDREW GARRETT WINES RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD & ORS

[2007] SASC 89

Reasons of The Honourable Justice Perry

9 March 2007

APPEAL AND NEW TRIAL - APPEAL -- GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

The applicant sought leave to appeal from a direction made to the Registrar by a Judge pursuant to Rule 53(3) of the Supreme Court Civil Rules 2006 that the Registrar refuse to accept an affidavit and notice for directions submitted for filing by the applicant on the ground that the documents were an abuse of the processs of the court - alternatively, the direction was said to be supported by reference to an order with injunction made on 29 August 2006, in that the acceptance of the documents for filing would operate as a breach of the order - held that insofar as it was suggested that the matter was governed by the 1987 Rules, r 102.09 of those rules was in substantially similar terms and would support the making of the direction - in any event, the direction was in the nature of an administrative rather than a judicial act and was not subject to appeal, whether by leave or otherwise - application dismissed.

Supreme Court Civil Rules 2006 r 53.3; Supreme Court Rules 1987 r 102.09, referred to.

ANDREW GARRETT WINES RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD & ORS
[2007] SASC 89

Civil

1. PERRY J. Mr Garrett, on behalf of various parties to the action, seeks leave to appeal from a ruling which I made on 10 January 2007 pursuant to which I directed the Registrar to refuse to accept an affidavit and notice for directions dated 8 January 2007 which had been submitted for filing in these proceedings by Mr Garrett.

2. I published brief reasons for the ruling and directed that they be served on Mr Garrett so that he would know the basis upon which I had made that direction.

3. The proceedings were instituted by the issue of a summons on 4 February 2004. At that stage the plaintiffs were Andrew Garrett Wines Resorts Pty Ltd and Averil Gay Garrett. The defendant was National Australia Bank Ltd (“NAB”).

4. Later Mr Garrett was added as a defendant by counterclaim.

5. The proceedings devolved around a dispute with NAB over certain mortgage loans.

6. In September 2006, Anderson J heard an application to have Andrew Garrett declared a vexatious litigant. The application has not yet been finally determined, but Anderson J has made several orders since the application was brought prohibiting Mr Garrett from instituting or continuing proceedings or filing any further documents in a number of proceedings in this Court, including these proceedings.

7. The document which he sought to file and which is the subject of my direction to the Registrar is described on the front sheet

   Affidavit of Andrew Morton Garrett

   Application for leave to file and serve this affidavit and notice for directions dated 8 January 2007.

8. In Mr Garrett’s affidavit he states that the “application” is brought pursuant to orders of Anderson J dated 7 December 2006. Pursuant to that order, Mr Garrett is prohibited from instituting or continuing certain proceedings without leave.

9. The affidavit and exhibits dated 8 January 2007 do not make the nature of the application entirely clear, but I assume that it is an application for leave to file the affidavit.

10. Quite apart from the vexatious nature of the contents, the filing of the affidavit would be a breach of the order with injunction made on 29 August 2006 (FDN 270).

11. When I  made the ruling, as to which there is now an application for leave to appeal, I stated that in addition to breaching that order, the filing of the document would be an abuse of the process of the court, and the Registrar should be directed to reject it, pursuant to Rule 53(3) of the Supreme Court Civil Rules 2006.

12. In his “notice of appeal” dated 13 January 2007, Mr Garrett makes various points described as “grounds of appeal” which I will deal with seriatim.

    “1.    His Honour failed to note that in the orders made on the 28^th of August 2006 the learned Justice Anderson made an order in respect of liberty to apply in which case this application does not breach the injunctive order.”

13. This ground fails, as liberty to apply is a shorthand expression which means that the parties may apply to vary or discharge an order. The affidavit of 8 January 2007 does not seek to vary or discharge the order of 28 August 2006.

    “2.    His Honour failed to note that further orders of Justice Anderson dated 7^th December 2006 made it necessary that the Appellant apply for leave to file the documents subject of this order.”

14. The order of 7 December 2006 should not be construed as applicable to documents sought to be filed in the existing proceedings listed in the order of 28 August 2006. Rather, the order of 7 December 2006 relates to the institution of proceedings involving Sunburst Properties Pty Ltd or for the continuation of proceedings answering to that description.

    “3.    In making the orders of 28^th August 2006 the learned Justice Anderson made orders that could be subject to abuse in that order 4 and order 8 were in conflict and consequently were incompetent.”

15. Par 4 and 8 of the order of 28 August 2006 are not in conflict.  Par 8 simply preserves liberty to apply, the nature of which I have already explained.

    “4.    The learned Justice Perry erred in applying Court Rule 53(3) of the Supreme Court Civil Rules 2006. This action was commenced prior to September the 4^th 2006 and the Supreme Court Civil Rules 1987 apply to this action.”

16. It is by no means clear which rules apply in the particular circumstances. However, insofar as it is suggested that the 1987 Rules apply, there is an equivalent rule to r 53.3 of the 2006 Rules, namely r 102.09 of the 1987 Rules. Insofar as r 102.09 refers to the leave of the court, that should be refused, given the nature of the documents in question.

    “5.    The orders made by the learned Judge dated 10^th January 2007 were biased or prejudiced and an abuse of process.

    a.     The learned Judge failed in the administration of Justice in respect of a requested judicial review.

    b.     The learned Judge failed in the administration of Justice and sought to protect the career of the Learned Justice Anderson.

    c.      The learned Judge failed in the administration of Justice in respect the prejudice and bias exhibited by this court in the hearing of Garrett related matters.

    6.     The learned Judge sought to exclude affidavit material that he knew would further compound the serious errors of this court in its dealings with Bills of Exchange that are a subject of this action.”

17. These complaints are themselves scandalous, abusive and vexatious and should not be entertained.

    “7.    The learned judge failed to properly name the parties to the action in the delivery of his judgement as required by the Supreme Court Civil Rules 1987 Rule 102.”

18. Rule 102 does not have the effect contended for.

19. I have given short answers to the points raised in the notice of appeal in deference to the arguments adduced by Mr Garrett.

20. On the hearing of the application, he appeared in person and proceeded ex parte. When I tried to clarify the question of representation, he explained that he could not act for either plaintiff as he was an undischarged bankrupt, and he conceded that any actions he might otherwise been entitled to pursue in his own right are vested in the trustee-in-bankruptcy.

21. He thereupon sought leave to appear as the first defendant by counterclaim and also for Creditnetbank Internationale, for whom he said he had an “agent’s authority” to represent in the court actions in South Australia. The authority was not produced and could not give a non-lawyer or non-director authority to represent the company.

22. He also sought leave to represent the second defendant by counterclaim Evajade Pty Ltd, of whom he said he was the sole shareholder, although he was not a director. He said he held a power of attorney from the company.

23. I accorded him a right of audience, notwithstanding the fact that it was doubtful that he had authority to act for any entity apart from himself as first defendant by counterclaim. I pointed out that either the points raised with respect to the application for leave to appeal from my decision were either good or bad, however many parties supported the application.

24. I had some difficulty in obtaining from Mr Garrett an argument focusing on the question at issue, namely whether or not it was right to rule that my decision in making the direction to the Master was an administrative decision not capable of sustaining an application for leave to appeal.

25. Rather, he addressed a number of issues, such as his complaints as to what he described as the failure by the courts to give him standing to represent a number of trusts, namely the Holy Grail Property Trust No 2, the Springwood Park Unit Trust, the Andrew Garrett Family Trust, the Andrew Garrett Family Trust No 2, the Andrew Garrett Family Trust No 3, the Sunburst Properties Unit Trust and the Phoenix Rising Vineyards Unit Trust. He evinced a desire to consolidate litigation in which they were involved, asserting that he wished “to consolidate all National Australia Bank related actions and just have one hearing, everything is related”.

26. He complained also as to a number of other issues, such as the manner in which distribution to beneficiaries of the trusts had been assessed for income tax liability; a desire to set aside a default judgment recorded in the District Court, which was the basis upon which he was declared bankrupt in the Federal Court; and assertions of bias against Anderson J. He also referred me to a copy of submissions which he had made in the context of the application made to Anderson J that he be declared a vexatious litigant, upon which judgment has yet to be delivered.

27. Of course, none of these matters have to do with the application which was before me.

28. Mr Garrett supplemented his submissions with written submissions in which he repeated a reference to many of the matters which he had developed in his oral submissions.

29. In the written submissions, he accuses a number of officers of the court, including two Judges and two Masters, of seeking “to manipulate the court rules and act in wilful blindness of the submissions and the evidence before them in an abject failure of the administration of justice and gross miscarriage of justice”. He invited the court to conclude that what he described as “continued interference with the administration of justice by the defendant” in the action must be treated as “criminal contempt”.

30. He complained that the failure of the court to deal with certain Bills of Exchange, in accordance with its alleged obligation to do so, had exposed the court to a liability in damages.

31. Needless to say, the written submissions were of no assistance to me in dealing with the application.

32. I have taken the trouble to answer or comment on the points made on the merits, but in any event, the ruling which I  made directing the Registrar to refuse to accept the document in question is in the nature of an administrative ruling and not in the nature of a judicial order or directions.

33. In those circumstances, it cannot be the subject of an appeal, or application for leave to appeal.

34. The application for leave to appeal is therefore misconceived and must be dismissed.

35. I so order.