Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd

[2006] SASC 381

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal from a Master: Civil)

ANDREW GARRETT WINES RESORTS P/L & ANOR v NATIONAL AUSTRALIA BANK LTD & ORS

[2006] SASC 381

Judgment of The Honourable Justice Anderson

19 December 2006

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT

PROCEDURE - COURTS AND JUDGES GENERALLY

BANKING AND FINANCE - INSTRUMENTS - BILLS OF EXCHANGE

PROCEDURE - COSTS - SECURITY FOR COSTS

Appeal from a decision of a Master - Master disallowed payment into Court by way of a Bill of Exchange as security for costs - whether the appellant has standing in any capacity - whether the appellant should be permitted to file an amended notice of appeal - whether the Master should have acted as an advocate of the unrepresented litigant - whether the Master erred in failing to recognise the Bill of Exchange as a valid form of payment into Court - Held: Mr Garrett does not have standing in any capacity - amended notice of appeal incompetent and not permitted to be filed - Master did not err by failing to act as Mr Garrett's advocate - Bill of Exchange not a valid form of payment into Court - appeal dismissed.

Bankruptcy Act 1966 (Cth) s 58(3); Supreme Court Rules 1987 (SA) r 3.04, r 28.05, r 36.11; Corporations Act 2001 (Cth) s 206A(1), referred to.
In re Barker's Trusts [1875] 1 Ch D 43; In Re Matheson; ex parte Worrell v Matheson (1994) 121 ALR 605, applied.
Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986); Platcher v Joseph [2004] FCAFC 68; Johnson v Johnson (1997) 139 FLR 384; Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Pezos v Police [2005] SASC 500; Harmer v Commissioner of Taxation (Cth) (1991) 173 CLR 264, considered.

ANDREW GARRETT WINES RESORTS P/L & ANOR v NATIONAL AUSTRALIA BANK LTD & ORS
[2006] SASC 381

ANDERSON J

INTRODUCTION

1. This is an appeal from a decision of a Master given on 10 May 2006.  The more distant background which led to the hearing before the Master is summarised comprehensively in his reasons at [1] and [2].  I heard argument on this appeal on  25 July 2006.

2. I will summarise the more recent events leading up to the appeal.

3. On 13 January 2006 the Master, when dealing with other matters incidental to the action, and after giving his reasons, concluded by making an order for costs against Andrew Garrett in favour of the National Australia Bank (“NAB”).  The Master ordered that the costs were to be taxed and payable immediately and made a further order to protect NAB from what he called “any further frivolous and misconceived applications in this action”.

4. His Honour ordered, that in respect of any appeals against the orders made by him, Mr Garrett was not permitted to file any further applications unless he first paid into court the sum of $5,000 on account of the taxed costs of NAB in relation to the applications he had already dealt with.  The Master further ordered that NAB could apply for a stay of any action pending the payment of the $5,000 into court.

5. Mr Garrett appealed against that judgment.  The appeal was dismissed by Vanstone J on 8 February 2006 and the fact is that no amount has ever been paid into court pursuant to the orders made.  As a result, the Registry of the Court has refused to allow Mr Garrett to issue further applications in the matter.  Mr Garrett has argued that there are already “monies” in court which would satisfy the requirements of the order requiring payment into court.   Mr Garrett asserts that the money is already “in court” by virtue of a Bill of Exchange (“the Bill”) which was lodged by him on 25 February 2005.  This Bill has not been regarded by the court as an appropriate payment in.  The Master allowed Mr Garrett to file an application for directions (FDN 248) to specifically deal with the issues relating to the Bill, and this is the appeal from the Master’s decision on that application.

   BACKGROUND

6. It is not necessary at this point to go into the full details of the proceedings in which NAB had taken out applications seeking an order for possession of a property known as Springwood Park.  That was a property occupied by the Garrett family and owned in the Garrett family interests.  On 14 September 2004 the Full Court upheld orders previously made by Besanko J permitting NAB to take possession because of the failure by the Garrett group to maintain payments pursuant to mortgages held by NAB over the Springwood Park property.   The reasons of the Full Court were published on 4 November 2004.

7. At the conclusion of the Full Court hearing, and as part of a discussion as to any potential application by Mr Garrett for a stay of proceedings, the court intimated that if such a stay application was made it “might” be entertained should an amount of not less than $1m be paid into court, and if ongoing interest was paid pending the trial of the action.  It was no more than an intimation that a substantial amount of money would have to be deposited to even consider such an application.  Mr Garrett has suggested that this amounted to a ‘binding contract’ between he and the court.  No stay application was ever made by Mr Garrett.  However, it was apparently as a result of this interchange that Mr Garrett then sought to tender, to the Registrar, what he described as an “International Bill of Exchange”, allegedly to provide the $1m suggested as the possible condition before a stay would be granted in this matter.

8. The Bill was drawn on Credit Net Bank Internationale for $1.7m (Australian) in favour of NAB, and was lodged in conjunction with two separate notices of payment into court in two different actions.  Only one Bill was provided.  $1m of the $1.7m was to be allocated for this matter.

9. It is asserted that Credit Net Bank Internationale is a Swiss bank or is affiliated with a Swiss bank.  It is apparently based on the Gold Coast in Queensland.  There is very little information about the entity but it is certainly not a financial institution of any prominence.  The major banks have not been prepared to negotiate the Bill.  The court has made it clear that the Bill has to be negotiated in the marketplace. 

10. On the day the Bill was lodged, the Registrar advised Mr Garrett that the Bill had been placed in the court’s safe until directions were obtained from Gray J who was managing the matter at that time.  That is where the Bill has remained until the present time.   It has never been accepted by the Registrar but has remained in the court’s safe.  Mr Garrett has chosen to leave the Bill with the Registrar and has not made any request for its return. 

11. Mr Garrett, in his notice for specific directions, sought further orders in respect of the Bill.  He asked that the Registrar be required “to follow the correct process in dealing with Bills of Exchange”, and that the $5,000, required pursuant to the order of the Master, be deducted from the Bill.  He also asked that an order be made that “tender of performance has occurred in respect of the payment for injunctive relief and as security for costs”.

12. The original notice of appeal in this matter was then lodged (FDN 257).  Mr Garrett, amongst other things, sought to appeal against the failure of the Master to act as his advocate because he was unrepresented.  He raised again the discussion in the Full Court and other matters regarding the Bill and in particular how it should be used to effect payment of $5,000, required by the Master’s order.

13. Over and above the matters raised in his original notice of appeal, Mr Garrett now seeks to proceed on a proposed amended notice of appeal which I deal with shortly.  This new proposed amended notice of appeal moves away from the particular issues on the appeal as lodged and seeks to open up all manner of issues in an attempt to review the perceived injustices against Mr Garrett.

    THE ISSUES

    1Does Mr Garrett have any standing in this matter?

    2Does his proposed amended notice of appeal have any reasonable prospect of success, and should he be allowed to file it?

    3Do any of the original grounds of appeal succeed?

    STANDING

14. Mr Garrett purported to appear as the appellant.  He is not a plaintiff in this action.  He is a defendant by counterclaim.  His standing is thereby limited.  Mr Garrett also sought to appear in his personal capacity as a trustee of various trusts and for the corporation Creditnet Bank Internationale, that is, the grantor of the Bill referred to earlier.

    Personal Capacity

15. Mr Garrett has purportedly used his status as a defendant by counterclaim to repeatedly come before the court. Under s 58(3) of the Bankruptcy Act1966 (Cth), the counterclaim in this action is stayed unless and until there is an annulment of the bankruptcy. I find it somewhat disturbing to know that Mr Garrett was told by a Master of this court on 22 December 2005 that he did not have standing in his own personal capacity and that he has nevertheless continued with such assertions.

16. The Master in his reasons of 13 January 2006 in action number 127 of 2004 stated at [40]:

    As Andrew Garrett has improperly used his alleged status as defendant to the counterclaim since it has been stayed, a direction is to be given under R 3.04(g) that unless and until the stay of the counterclaim is lifted Andrew Garrett is not to be given any status in this action as a defendant to counterclaim and is not permitted to file documents , other than to appeal against this order.

17. Mr Livesey QC, for NAB, in the course of submissions, tendered a letter from Lipman Karas, the solicitors for Mr Macks, the trustee of the bankrupt estate of Mr Garrett.  This letter asserts that Mr Macks was not aware that Mr Garrett had made an application on 3 March 2006 in his personal capacity.  Mr Garrett did not have Mr Macks’ consent to bring such an application.  In addition, Mr Macks is not aware and has not been provided with a copy of the notice of appeal filed by Mr Garrett on 19 May 2006 in his personal capacity.  Mr Macks does not consent to the filing of the notice of appeal, the pursuit of this appeal, or the use of funds from the estate being utilised to prosecute the appeal.  Mr Garrett cannot continue to appear in this action even as a defendant by counterclaim.  He does not have standing as the action against him has been stayed by virtue of the relevant legislation.

    As a Trustee of a Trust

18. Mr Garrett also asserted that he appeared on the basis of the “affidavit material on action 127”, whatever this may mean. A Master heard argument on this point and delivered judgment on 13 January 2006. The Master found that Mr Garrett did not have standing. He also rejected Mr Garrett’s application for leave to appear for Evajade Pty Ltd (“Evajade”) under r 36.11. I deal with Evajade later in these reasons.

19. Mr Garrett appealed the decision of the Master dated 13 January 2006.  As already indicated, Vanstone J heard this appeal and published reasons on 8 February 2006.  Her Honour dismissed the appeal and rejected “all of Mr Garrett’s claims to locus standi in this matter”.

20. Mr Garrett then applied for leave to appeal against the decision of Vanstone J.  Her Honour heard this application on an ex parte basis, delivered judgment on 15 March 2006 and refused leave in each instance.

21. Nothing put to me by Mr Garrett, including his reference to the affidavits contained on the relevant files, show that Mr Garrett’s circumstances have changed in such a way that would support his claims of having valid standing.  He is an undischarged bankrupt.  On his own admission, he is not able to act as a director of a company.  His submission that he appears as a trustee of a trust is not valid and is not in accordance with the rules of this court.  I would not grant Mr Garrett leave to appear on this basis.  Further, if Mr Garrett were to act as trustee of a trust, it is likely that a court would find cause for his removal from such a position purely because of his bankrupt status and the undesirability of having him act as trustee having regard to the circumstances in which he seeks to control the trust.  (See In re Barker’s Trusts [1875] 1 Ch D 43). In Re Matheson; ex parte Worrell v Matheson (1994) 121 ALR 605, Spender J at 614 said:

    These are cases which suggest that bankruptcy of a trustee per se is sufficient ground to show, prima facie, that a trustee is “unfit to act” as a trustee for the purposes of s 12 of the Trusts Act, (see Chambers v Jones (1902) 2 SR (NSW) 177.

    A H Simpson CJ in Eq at 182 said:

    …I think the principles deducible from the above cases are the following: Bankruptcy prima facie renders a trustee unfit to act for two reasons – first, because the fact of bankruptcy is prima facie evidence that the bankrupt is a person who has been improvident or unwise to act in the management of other people’s business; and secondly, because it shows that the person who is bankrupt is not a person of small or no means, “and a necessitous man is more likely to be tempted to misappropriate trust funds than one who is wealthy”: Per Jessel MR, Re Barker’s Trusts (1875) 1 Ch D 43.

    This is, of course, only prima facie evidence, and the bankrupt may be able to rebut both presumptions:…

22. In my opinion, the principles are clear.  Having considered the circumstances, I do not think that it is appropriate for Mr Garrett to act as a trustee of a trust.

    On Behalf of a Corporation

23. Under s 206A(1) of the Corporations Act 2001(Cth) it is an offence for an undischarged bankrupt to “make or participate in making, decisions that affect the whole, or substantial part, of the business of the corporation”.  Mr Garrett does not have standing to represent any corporate defendant because of his bankrupt status.  If Mr Garrett was to be granted leave, there is potential for him to commit an offence by appearing for the company.

    Summary on Standing

24. It is not appropriate to allow Mr Garrett to continue to assert that he appears pursuant to the rules for the reasons which I have set out earlier.  He cannot continue to lodge appeals and file documents in his personal capacity when a trustee of his bankrupt estate has been appointed and does not consent to such a course of action.  Mr Garrett has been told numerous times by different Judges that he does not have valid standing and that he cannot continue to bring actions and lodge appeals without recognised standing.  The other parties to this action, namely, the liquidators appointed for Andrew Garrett Wines Resorts P/L, discontinued action 127-04 on 20 September 2005 (FDN 194).  A trustee in bankruptcy has been appointed for Mrs Averil Gay Garrett.  That trustee has also elected not to assume the conduct of this action.  Further, NAB’s counterclaims against Andrew Garrett Wines Resorts P/L, Mrs Garrett and Mr Garrett have been stayed by operation of the Corporations Act and the Bankruptcy Act.   It is for these reasons that Mr Garrett does not have standing.  If this action is still on foot, it is for all relevant purposes, moribund.

    PROPOSED AMENDED NOTICE OF APPEAL

25. Late on 21 July 2006, four days before I was to hear the appeal from the Master, Mr Garrett forwarded to my chambers an amended notice of appeal. This amended notice of appeal had not been filed and had not been served because of the earlier orders made by the Master. In addition to the grounds of appeal contained in the notice of appeal (FDN 257), Mr Garrett, in his amended notice of appeal was effectively asking for a review of all judgments entered in the consolidated action SCCIV-04-127 and that all judgments be set aside.  The additional grounds are:

    10His Honour failed in the administration of Justice and Equity in all hearings before him agitated by Andrew Morton Garrett

    11His Honour failed to notice that from the date of joinder of Evajade Pty Ltd (discrete Legal Entity) as the Fourth Defendant by Counterclaim and Michael Cown Garrett as the Fifth Defendant by Counterclaim that neither party had been served with any notices in this action.

    12He failed to Notice that as a result of that failure to serve all parties and properly add them to the Court record all subsequent matters are mistrial and are required to be reheard

    13He failed to give weight to any affidavit of the Appellant filed in this action.

26. Mr Garrett is primarily seeking the following orders, amongst others, in the amened notice of appeal:

    1That all judgments made in this action from 3 August 2004 be set aside;

    2That an order be made to give standing to Mr Garrett in a whole range of capacities;

    3That Judge Lunn be removed from hearing any further applications; and

    4That the order requiring $5,000 to be paid into court be stayed “in the interests of Natural Justice”.

27. Mr Garrett made it clear that his argument related to what he called the “technicality of alleged non-compliance with orders requiring service on parties”, but was not related to the merits of the various matters determined by the individual Judges or Masters.  In other words, because of the perceived technicality he should be permitted to set aside all previous judgments in this matter.

28. Before hearing submissions on the original notice of appeal, I heard Mr Garrett’s submissions as to why I should grant leave to allow him to file this all encompassing proposed amended notice of appeal.

    Non-service of Evajade and Michael Garrett

29. Mr Garrett wished to argue that because two ‘potential parties’, Michael Garrett and Evajade, had not been served at any time after 4 August 2004, there had been a denial of natural justice.  Michael Garrett is Mr Garrett’s brother and Evajade is a trustee company which was set up to administer various trusts related to the Garrett family.

30. The thrust of Mr Garrett’s submissions related to what he called a denial of natural justice as a result of the non-service by NAB, since 4 August 2004, of various documents upon Michael Garrett and Evajade.  He sought to agitate issues of “procedural fairness and natural justice”.  In the course of his submissions, Mr Garrett referred me to many of the judgments, which he sought to have set aside.  These included one Full Court judgment and judgments from single Judges of this court.  I do not have jurisdiction to hear appeals on such judgments even if they had not been lodged years and months out of time.  Mr Garrett argued that I was required by rules of natural justice to review all decisions in which Evajade and Michael Garrett had not been served.

31. Mr Livesey QC pointed out that Evajade and Michael Garrett were joined solely for the purpose of obtaining Mareva orders after it became clear that assets had been transferred from the Andrew Garrett family trust to the newly created Andrew Garrett Family Trust No 2 in the days following the Bank’s service of notice of demands.  He further submitted that Mr Garrett’s proposed amended notice of appeal was without merit, and that in any event Evajade has been on notice because of its relationship with Mr Garrett as joint trustee.

32. The actual position in these proceedings of Evajade and Michael Garrett, as parties, is uncertain.  Since 4 August 2004 Evajade has not been served although it has appeared on different documents on the file as a defendant by counterclaim.  That is because Mr Garrett has included them.  In my opinion, Evajade is not a party to this action and no proceedings have been commenced against it.  Rule 28.05 of the Supreme Court Rules 1987 (SA) (“the rules”) sets out the relevant procedure.   It provides:

    Every person who is added as a defendant shall be served with the amended summons or with notice in lieu thereof as the case may require, and the proceedings as against such party shall be deemed to have begun from the date of such service being effected.

1. The effect of this is that proceedings against a person, joined as an additional defendant, are deemed to have begun only upon the service upon him.  As Evajade and Michael Garrett have not been served with an amended summons or with any notice in lieu thereof, proceedings cannot be considered to have begun. This is consistent with the fact that Evajade and Michael Garrett only became involved in this action for the limited purpose of the injunction and for the specific purpose of obtaining a negative pledge that they would not deal with certain assets.  As I understand Mr Garrett’s complaint, there is a denial of natural justice because they have not subsequently been served.  I do not believe that there is any such denial and, in my opinion, his argument is without merit.

2. Mr Garrett’s continual insistence on an unfairness because Evajade and Michael Garrett have not been served is self-defeating.  They have not been served since 4 August 2004 because they did not have to be served.  They were only involved for a limited purpose.  Mr Garrett’s attempts to use the lack of any subsequent service on them is a transparent attempt to confuse the issue.

3. If I am wrong and Evajade and Michael Garrett have been properly served and proceedings have been commenced against them, Mr Garrett is not in a position to agitate issues relevant to Evajade or to Michael Garrett. He is an undischarged bankrupt and has not been given leave to represent Evajade or the natural person Michael Garrett. In any event, I would not grant Mr Garrett leave. If Mr Garrett was to be granted leave under r 36.11 to appear for a corporate defendant, there is a potential for him to commit an offence pursuant to the Corporations Act 2001 (Cth) by appearing for the company.

   Removal of Master

4. Mr Livesey correctly submitted that in addition to the jurisdictional issues referred to, I do not have the power to remove the Master from hearing any further applications.  I add that in any event, I do not think that there is any merit in this application.  Mr Garrett has failed to make out any reason, which would validly disqualify the Master from hearing further applications. 

5. In my opinion, aside from the obvious legal obstacles which Mr Garrett faces, his amended notice of appeal is incompetent and without merit. I do not believe that the amended notice of appeal has any reasonable prospect of success for the reasons that I have stated. It fails to particularise any appealable errors of law and is so defective that it is not susceptible to amendments. It would be inappropriate, in my view, to exercise the power given in r 3.04 to validate the notice. For these reasons, I would not grant Mr Garrett leave to file this amended notice of appeal.

   THE ORIGINAL NOTICE OF APPEAL

6. Having heard Mr Garrett’s submissions as to his standing and his proposed amended appeal, I proceeded to hear argument regarding the original notice of appeal, assuming for the purpose of argument that at that time he did have standing. The notice of appeal (FDN 257) filed on 19 May 2006 contained nine grounds of appeal as follows:

   1At paragraph 5 his honour failed to act as an advocate of an unrepresented party in seeing how the submissions could be applied to the orders sought;

   1.1    He failed as a matter of Natural Justice

   1.2    He erred in asserting that the arguments of the applicant were either marginal or of no relevance.

   2.At paragraph 9 His Honour erred in failing to recognise that the “intimation” of the Chief Justice referred to in paragraph 6 was in fact an offer, which by the actions of the Defendant by Counterclaim and the Registrar had been accepted by tender of payment and the subsequent tenor of the actions of the Registrar.

   2.1    No further application should have been necessary to obtain the injunction.

   2.2    The failure of the Registrar to obtain the orders of Gray J subsequent to the conditional receipt was not the fault of the Defendant by Counterclaim.

   3At Paragraph 10 His Honour erred in exercise of discretion that the payment was to be made to the account of action 127 of 2004 as there were no apparent orders in respect of action 1767 of 2003.

   3.1    It was not clear as to the amount of Interest claimed by National Australia Bank as set out in paragraph 6 from the transcripts.

   4He failed to consider that in making a payment in excess of the sum required by the Chief Justice the Defendant by Counterclaim  was simply acknowledging that he was content to leave all of the moneys in the Suitor’s fund in related actions.

   5      At paragraph 11 and in particular at the final sentence.

   5.1    He did not recognise that AMG is an unrepresented party and that simple orders for rectification could have been made by the court in respect of any procedural of practice defects at the discretion of the Court.

   5.2    The registrar was compelled to accept the payment across the Counter in accordance with the laws concerning tender of payment.

   5.3    Having accepted the tender of performance, albeit conditionally at the time of tender and subsequently waiving those conditions by the Tenor of the actions of the Registrar (13 months delay),

   5.3.1his Honour failed to recognise the laws of Estoppel came into effect in respect of the actions of the Registrar having accepted the Bill of Exchange

   5.3.2His Honour failed to exercise his discretion to join the Registrar as a party to the action.

   5.3.3He failed to recognise that in any subsequent actions the Registrar is to pay the costs of the applications on an indemnity basis.

   6.At paragraph 12 His Honour failed to recognise that the subsequent actions of the Registrar and the Passage of Time were waiving of the rights to refuse the Bill of Exchange as to payment.

   6.1    Given the acceptance of the Bill it may be considered as Valid Legal Tender,

   6.2    in any event the form of payment to the suitor’s fund was silent in paragraph 12.

   6.3    A Bill of Exchange is equivalent to cash and is also set out as money both of which are acceptable forms of payment to the Suitors Fund

   6.4    The Court had previously dealt with the Bills of Exchange drawn on the Balance sheet of Creditnet and had waived any previous rights of objection as set out previously in this action as set out in order 1 of the orders of Gray J dated 14^th September 2004. The non negotiation and dealing were only limited to section 120 of the Bankruptcy Act.

   7At paragraph 13 his honour failed to recognise that the orders for payment of $5,000 were made against AMG both in his capacity as Defendant by Counterclaim pursuant to section 60(4) of the Bankruptcy Act but also in his capacity as applicant for Joinder pursuant to his standing as Joint trustee of the Springwood Park Unit Trust which is subject to Full Court Appeal. In any event there is nothing to prevent the Trusts from advancing funds to pay orders as to costs when the issues being agitated are for the benefit of the Trusts.

   8At paragraph 14 His Honour erred in casting any aspersions on the validity of the Power of Attorney of Andrew Garrett Wine Resorts.

   8.1    His statements are supposition and nothing further and an error in Natural Justice as the onus is of proof is on the balance of probability and that a party is innocent until proven guilty.

   8.2    In any event he failed to take into account that as the Registrar was the Holder of the Bill in Due Course as defined under the act the mere holding of the Bill renders the Bill free from defect.

   8.3    In making these assertions His Honour Breached the Bills of Exchange act (1909) and failed to make proper investigation of the authorities and submissions before him

   8.4    In doing so he was Negligent.

   9      At paragraph 15 His Honour continued to be guided by his errors and negligence

   9.1    He has relied on Hearsay which is inadmissible under the evidence Act (1995)

   9.2    In dismissing the application his Honour Breached the Bills of Exchange Act (1909), The Banking Act (1959), The Supreme Court Act (1935), The evidence act (1995) and the Judiciary Act (1903)

   9.3    He erred in failing to recognise that there is sufficient affidavit material in front of him to determine the efficacy of the Bills of Exchange.

   9.4    He erred in failing to recognise that there has been no challenge to the efficacy of the Bills from any third party in spite of the circulation of these Bills since September 2004.

7. For ease of understanding I have attempted to paraphrase the grounds of appeal as I understand them.  Ground 1 asserts that “The Master failed to act as Mr Garrett’s advocate.

8. Ground 2 asserts that the Master effectively misconstrued some comments of Doyle CJ in remarks made during the hearing before the Full Court on 14 September 2005. – See paragraph 7 of these reasons.

9. Ground 3 asserts that the Master erred in the exercise of his discretion in deciding that an alleged payment into court by use of the Bill was both in relation to action 127/2004 and at the same time for action 1767/2003.

10. Ground 4 does not detail any complaint.  It appears to be an assertion by Mr Garrett regarding some background relating to the payment in.

11. Ground 5 details a number of different and unrelated complaints.  In particular it criticises paragraph [11] of the Master’s reasons, which relate to the rules and practice directions relevant to monies paid into court.

12. Ground 6 complains of the Master’s reasons, at [12], and asserts amongst other things that Bills of Exchange should be considered a valid form of payment for the purpose of moneys paid into court.

13. Ground 7 is unclear as to what error in law has been made.

14. Ground 8 appears to imply errors amounting to a failure to give natural justice in relation to some aspect of the validity of a Power of Attorney.

15. Ground 9 contains claims that the Master erred by relying on hearsay, dismissing the application, and in failing to recognise that there has been no challenge to the efficacy of the Bill, and a general assertion that the Master has “breached” various statements.

16. Mr Garrett, in his oral submissions, asked me to read his original written submissions, his further written submissions entitled “Miscarriage of Justice” and the relevant documents in the folder of documents which he handed up in the course of his submissions.  He also asked me to take into account the affidavits on the file and in particular the affidavit of Richard Keith Beissel dated 9 November 2004 (FDN 118).  I have read and considered these documents. Grounds 1, 5 and 6 are the only valid grounds of appeal that contain any possibility of an appealable error of law. I will consider these grounds separately.

17. It is my view that most of the grounds of appeal are undeserving of any further consideration.  They are imprecise and frivolous.  In this category I include grounds 2, 3, 4, 7, 8 and 9.  Grounds 5 and 6 are at least vaguely related to the question of the legitimacy of the Bill.  Ground 1 probably involves a question of law.

    Ground 1

18. The first ground of appeal complains that the Master “failed to act as an advocate of an unrepresented party”.   The role of a Judge in relation to an un-represented litigant is a difficult one.  However, the applicable principles are not in dispute.  The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant were discussed in Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986).

19. In this case Samuels JA at 14 stated:

    In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxillary role so as to confer upon a litigant in person a positive advantage over the represented opponent. …At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

20. Mahoney JA went on at 27 to state:

    Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal sill, failed to claim rights or to put forward arguments which otherwise might have done.

21. These comments have been referred to with approval in subsequent cases:  Platcher v Joseph [2004] FCAFC 68, Johnson v Johnson (1997) 139 FLR 384, Re Morton, Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497, Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Pezos v Police [2005] SASC 500.

22. Mr Garrett’s first ground of appeal must fail.  There was no obligation for the Master to act as Mr Garrett’s advocate.  Any assistance rendered by the Master should not be any greater than that required to diminish the disadvantage that Mr Garrett faces as an unrepresented litigant.  If the Master were to have assumed the role of Mr Garrett’s advocate it would be in direct conflict with his duty to remain in a position of neutrality.

23. Mr Garrett cannot expect to obtain advantage because of the fact that he is unrepresented in these proceedings.  An unrepresented party is as much subject to the rules as any other litigant.  Mr Garrett is not entitled to put forward arguments that are not relevant or to rely on inadmissible statements.  He is required to abide by the procedural rules of this court and to ensure that his actions are not contrary to the rules of this court.

24. In my opinion this ground of appeal must fail.  I therefore dismiss it.

    Grounds 5 and 6 – the Bill of Exchange

25. These grounds of appeal are not entirely clear.  They do not particularise any actual error of law made by the Master.  They attempt to broadly identify Mr Garrett’s complaints regarding the treatment of the Bill which was proffered in answer to an order for payment into court.  The Bill has been the subject of much debate in court and has consumed a large amount of court resources.   Mr Garrett has been given clear warning on many occasions that his arguments are misconceived. 

26. The brief history leading to these grounds of appeal is in part set out earlier.   On 2 March 2004 Besanko J having heard an appeal from a Master of this court proceeded to make injunctive orders restraining NAB from making any demand or taking any steps to enforce any rights under certain mortgages.  On 28 July 2004 Besanko J ordered that the injunction be discharged due to a number of factors including the plaintiffs failure to make payments under the Bill facility, delays in setting the matter down for trial and a new notice of default in respect of an admitted debt of $1.5m.  He further ordered that the plaintiffs deliver up possession of the Springwood property to NAB. 

27. An appeal against these orders was heard by the Full Court.  The court made orders on 14 September 2006 and reasons were delivered on 4 November 2004.  The appeal was dismissed on the basis that no error had been identified.

28. From that point, Gray J managed the consequential matters arising from the Full Court decision.  That management included numerous applications on behalf of both the plaintiffs and the defendant with Mr Garrett seeking, amongst other things, that the order for possession be set aside and that the summons and statement of claim be struck out.

29. Mr Garrett, in his submissions to me, complained that there was a miscarriage of justice which was fundamental to the “surrounding issues”.  In particular he cited the Master’s failure to represent the interests or consider the interests of the beneficiaries of the Andrew Garrett Family Trust (1 & 2).

30. Mr Garrett also asserted that there was effectively an estoppel operating against the Registrar from  rejecting the Bill as a valid payment into court.  He submitted that the Bill had been accepted by the Registrar and therefore should be considered to be valid legal tender.  He also complained that the Master had erred by not treating the Bill as cash.

31. The transcripts of various hearings before this court show a determination by Mr Garrett to assert that the Bill is a valid method of payment into court and to creditors. Mr Garrett has proffered Bills of Exchange since 2004 as a means to pay his debts.  These Bills have been “banked” by some of Mr Garrett’s creditors but have not resulted in the realisation of any money.  The attempts made to negotiate the Bills have been fruitless.

32. It is clear from the transcript that Gray J, on 25 February 2005, directed that the court would not allow the Bill to be paid in to court because it would involve the court having to, in some way, trade the Bill.  Gray J directed that Mr Garrett would have to in some way “deal with the Bill in a way that will allow a real credit to the suitors fund” and he said that the court “can’t be left in a position with what may be a debateable document” (25 February 2005, T4.28).  Gray J directed that the original Bill handed to registry could be returned to Mr Garrett and that it would not be placed in the suitors fund without direction.

33. The Registrar has never accepted any of the Bills.  They are being held in the court’s safe.  They have not become trust moneys in the sense described by the High Court in Harmer v Commissioner of Taxation (Cth) (1991) 173 CLR 264. Mr Garrett is able to request the return of the Bill, but has chosen not to make such a request.

34. The position of the court in relation to the Bill has not changed.  On 2 September 2004 the court emphasised that the Bill would need to be negotiated in the market place.  Mr Garrett could have done this and then paid the money obtained from such a negotiation into court.  Why he has not taken such a simple step if the Bill is valid legal tender, as he asserts, remains a mystery.  It appears that this would have been the most logical approach and could even have prevented the train of events which led to the sale of the Springwood Park property.  That assumes of course that the Bill could be negotiated for its stated value in the marketplace.  It must be concluded that Mr Garrett knows that the Bill is worthless because there is no logical reason why he would not have obtained cash and paid that cash into court if that could have avoided the sale of Springwood Park.

35. The Master, in his reasons at [12], concludes that there was no obligation on the Registrar to accept the Bill as a valid means of payment into court.  I agree with the conclusion of the Master and his reasons for that conclusion.

36. The Master was also correct in saying that the Bill could not be used in any event to cover two payments into court for two separate actions where the parties were different.  Apart from the question of the Bill being appropriate for a payment in, it simply could not be used for payments in two different matters with different parties.

37. Mr Garrett is an intelligent but blindly stubborn litigant who refuses to take no for an answer.  He acknowledged as much in his argument but says he will continue to fight these matters no matter what order the court makes.

38. The complaint regarding the practice of the court regarding the type of funds payable into court in this instance is not an error of law from which an appeal may lie.  In any event, Mr Garrett has failed to establish any error on the part of the Master. 

1. Mr Garrett has, in my view, been somewhat disingenuous in the way he has persisted in his attempts to do something for which he was given the clearest warnings and suggestions by Gray J as to why the court would not and could not negotiate the Bill.  He has chosen to make his grievance about the Bill one of the lynchpins of his continual assertion that he has been denied justice.  The arguments he has put forward are without merit and appear to me to be an attempt to delay and generally re-litigate matters which have been finalised in earlier decisions.

   CONCLUSION

2. As I have said, many of Mr Garrett’s complaints and assertions are not appropriate grounds for an appeal.  They do not set out appealable errors of law.  The assertions by Mr Garrett relate to his perceived mistreatment by the court and include allegations of misconduct on behalf of various judicial officers.  These allegations do not attempt to detail any error of law but merely assert broad propositions and misstatements of law. Mr Garrett’s continued assertion of standing and “fundamental miscarriages of justice” do not add any strength to his submissions.  All they do is show his relentless crusade to demonstrate a perceived injustice.  The perceived injustice results from his businesses and business assets being lost because persons and entities owed money by him have exercised their legal rights.  They have taken various enforcement proceedings against both Mr Garrett and his various legal entities, because of defaults by Mr Garrett and the entities with which he is associated.

3. The Master in his judgment dated 13 January 2006 stated at [49]:

   While (Andrew Garrett) 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 application, and thereby cause substantial expense to the Bank in defending them.

4. I would, with respect, agree with the Master’s reasons.  I am concerned that Mr Garrett’s failure to accept the finality of any decision whether interlocutory or not, has become a burden on the court’s resources.  

5. Reverting back to the issues I find:

   1Mr Garrett has no legal standing in this matter either on his own behalf or on behalf of any of the individuals or entities he seeks to represent;

   2His proposed amended notice of appeal has no reasonable prospects of success and should not be allowed;

   3Apart from the appeal grounds relating to the Bill, all other grounds fail for the reasons given.  In relation to the Bill, the Master correctly analysed the legal issues regarding the Bill and those grounds also fail.

6. I therefore dismiss the appeal for the reasons given and I will hear the parties as to costs.