Attorney-General for the State of Victoria v Garrett
[2017] VSC 75
•2 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 03048
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| ANDREW GARRETT | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2016 and 3 February 2017 |
DATE OF JUDGMENT: | 2 March 2017 |
CASE MAY BE CITED AS: | Attorney-General for the State of Victoria v Garrett |
MEDIUM NEUTRAL CITATION: | [2017] VSC 75 |
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PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Whether judgments and orders in earlier proceedings inadmissible by reason of s 91 Evidence Act 2008 – Judgments and orders admissible – Defendant persistently and without reasonable grounds commenced and conducted vexatious proceedings – Vexatious Proceedings Act 2014 ss 3, 28, 29 – Evidence Act 2008 s 91 – Supreme Court Act 1986 s 21 – Supreme Court Act 1935 (SA) s 39(5) – Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO – Bankruptcy Act 1966 (Cth) ss 58(1)(b), 60(2), 116(2)(g) – Supreme Court (General Civil Procedure) Rules 2005 r 23.01.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Harris | Victorian Government Solicitor |
| For the Defendant | No Appearance |
HIS HONOUR:
By an originating motion dated 21 July 2016, the Attorney-General for the State of Victoria makes an application for a general litigation restraint order against Mr Garrett pursuant to s 28 of the Vexatious Proceedings Act2014 (‘the Act’). I am satisfied that Mr Garrett has persistently and without reasonable grounds commenced and conducted vexatious proceedings. I am also satisfied that it is appropriate to make a general litigation restraint order in the terms sought by the Attorney-General.
Mr Garrett did not actively participate in the current proceedings. However, I am satisfied that he was served with all of the evidence and submissions relied upon by the Attorney-General. I am also satisfied that he was aware of the hearings which took place on 8 December 2016 and 3 February 2017 and elected not to participate in the proceedings.
On 2 February 2017 at 6.35 pm, Mr Garrett forwarded to Ms Athanasiadis of the Victorian Government Solicitor’s Office, and to my chambers, an email in the following terms:
Dear Ms Athanasiadis & Ms Associate
My position remains unchanged this court is hopelessly conflicted as a consequence of abject failure of the proper application of the principle of Separation of Powers and misinterpretation of the Human Right to Remedy inherent to the Common Law and State and Federal Constitutions.
For the purposes of tomorrows hearing I restate the Notice of Bias and Apprehended Bias previously served on this court in respect of the aforementioned proceeding and SCI 2015-01232; Garrett v Cahill & Anor.
I note that neither the court nor the Attorney General have responded to the applications made under the Freedom of Information Act 1982 (Cth).
The Court and the Attorney General have misinterpreted their roles.[1]
[1]Email from Andrew Garrett to Patricia Athanasiadis and Associate to Justice McDonald, 2 February 2017.
It is apparent from the correspondence set out above that Mr Garrett was aware of the hearing on 3 February 2017 but chose not to participate in that hearing.
The Vexatious Proceedings Act: The power to make a general litigation restraint order
The Supreme Court has power to make a general litigation restraint order pursuant to s 29 of the Act. Section 29 provides:
(1)The Supreme Court constituted by a Judge of the Court may make a general litigation restraint order against a person if the Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted vexatious proceedings.
(2)In determining whether it is satisfied of the matters specified in sub-section (1), the Supreme Court may take into account any matter it considers relevant, including but not limited to any the following—
(a)any proceeding commenced or conducted by the person, or an entity controlled by the person, in any Australian court or tribunal;
(b)the existence of any order made by an Australian court or tribunal against the person, or an entity controlled by the person, including—
(i)a litigation restraint order; or
(ii)an acting in concert order; or
(iii)a vexatious proceeding order;
(c)any other matter relating to the way in which the person conducts or has conducted litigation.
The phrase ‘vexatious proceeding’ is defined in s 3 of the Act as follows:
“Vexatious proceeding” includes the following:
(a) a proceeding that is an abuse of the process of a court or tribunal;
(b)a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c) a proceeding commenced or pursued without reasonable grounds;
(d)a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The Attorney-General’s application is supported by five affidavits of Patricia Athanasiadis, a solicitor employed by the Victorian Government Solicitor’s Office. The affidavits exhibited a large number of orders and judgments in respect of Mr Garrett from the Supreme Court of South Australia, the Federal Court of Australia and the Supreme Court of Victoria. Some of those orders and judgments concerned applications in the South Australian Supreme Court and the Federal Court of Australia to restrain Mr Garrett from commencing proceedings in those courts without the leave of the court. Several of the judgments of the Supreme Court of Victoria relate to applications to strike out proceedings commenced by Mr Garrett as an abuse of process.
The Attorney-General filed submissions on 21 November 2016. The Attorney-General submitted that the judgment of Ormiston JA in Kay v Attorney-General (Vic);[2] although relating to an application for orders under s 21(2) of the Supreme Court Act1986, was relevant to the assessment of evidence to be taken into account by a court hearing an application under s 28 of the Act.[3] In Kay Ormiston JA stated:
… but I would not wish it to be thought that, in every application of this kind under s 21 of the Supreme Court Act 1986, it was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order. If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events.
The learned judge, primarily I would gather from a sense of fairness and in an attempt to discover why the applicant said that the order should not be made, went somewhat further into the reasons for the various orders, the circumstances that lay behind them and what may now be thought to be the applicant’s unreasonable attacks upon them. On other occasions, therefore, examination in such detail may properly be seen to be unnecessary, for the procedure is not to be treated as the opportunity for a second line of appeal against judgments or orders upon which reliance is placed for the making of an order under s 21.[4]
[2](2000) 2 VR 436 (‘Kay’).
[3]Plaintiff’s supplementary outline of submissions, 23 January 2017, [21].
[4]Kay (2000) 2 VR 436, 437–438.
The Attorney-General submitted that the approach set out by Ormiston JA has been followed in subsequent cases in which vexatious litigation declarations have been made.[5] I accept this submission. In Attorney-General (Vic) v Horvath, Senior,[6] Ashley J held that judgments and orders are the ‘critical evidence’ for the purposes of determining whether a prior proceeding was vexatious. His Honour stated:
It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[7]
[5]Plaintiff’s outline of submissions, 18 November 2016, [17]–[18]. See also A-G (Vic) v Weston [2004] VSC 314, [16]; A-G (Vic) v Knight [2004] VSC 407, [5]; A-G (Vic) v Horvath, Senior [2001] VSC 269.
[6][2001] VSC 269 (‘Horvath’).
[7]Ibid [28].
This passage has been cited with approval in this court on a number of occasions.[8]
[8]See, eg, A-G (Vic) v Knight [2014] VSC 549, [39]-[40]; A-G (Vic) v Pham [2014] VSC 311, [18]; Slaveski v A-G (Vic) [2013] VSCA 165, [14], [27]; A-G (Vic) v Bahonko [2011] VSC 352, [80]; A-G (Vic) v Shaw [2007] VSC 148, [5].
When the current proceedings were first listed for hearing before me on 8 December 2016 I raised with Ms Harris, who appeared for the Attorney-General, the potential application of s 91 of the Evidence Act2008 (Vic) to the admissibility of the judgments and orders annexed to Ms Athanasiadis’ affidavits. Section 91(1) provides:
Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
On 8 December 2016 I drew Ms Harris’ attention to the observation of Simpson J of the New South Wales Supreme Court in Attorney-General (NSW) v Martin[9] where her Honour stated:
Section 91 constitutes a considerable fetter on proof of the matters necessary to be proved in order to establish that proceedings are vexatious. Given that the Vexatious Proceedings Act has three important objectives — (i) to protect potential defendants against unwarranted litigation; (ii) to protect courts against abuse of their processes; and (iii) to ensure that valuable court time is available for litigation and resolution of genuine disputes, applications thereunder should not be impeded by fetters on the admissible evidence. In its application to the Vexatious Proceedings Act, s 91 is antithetical to those objects.[10]
[9][2015] NSWSC 1372.
[10]Ibid [132].
The proceedings were adjourned until 3 February 2017. Directions were made for the Attorney-General to file and serve further submissions addressing the potential application of s 91 of the Evidence Act in the current proceedings.
The application of s 91 to an application under the Vexatious Proceedings Act has never been considered by a judge in a Victorian court. However, in New South Wales several judges have considered the application of s 91 of the Evidence Act in the context of applications under the Vexatious Proceedings Act 2008 (NSW). As outlined below, there has been a divergence of judicial opinion in New South Wales regarding the extent to which s 91 operates as a fetter upon the admissibility of judgments and orders in support of an application to declare an individual a vexatious litigant.
In Attorney-General (NSW) v Chan,[11] Adamson J overruled an objection to the tender of reasons for judgment based upon s 91 of the Evidence Act 1995 (NSW):
The judgments establish the procedural matters and the outcome of various applications made by, and against, the defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant’s conduct in the course of the proceedings. These matters do not constitute findings of fact in issue of the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant’s stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendant’s objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose.[12]
[11][2011] NSWSC 1315.
[12]Ibid [47].
In Attorney-General (NSW) v Potier[13] McCallum J stated:
I would respectfully accept the correctness of the approach taken by Patton AJ subject to one matter of clarification. His Honour expressed the view that the findings of the court that determined any application relied upon as being vexatious can be taken into account “where appropriate”.
As already noted, I do not think it would be appropriate to rely on the judgment in an earlier proceeding to establish the existence of a fact that was in issue in the proceedings. However, it is doubtful whether the characterisation of proceedings as an abuse of the process of the court is to be regarded as a “fact” in that context. As noted by Davies J in the passage from Wilson set out above, the judge determining the application under the Vexatious Proceedings Act needs to form his or her own view about each piece of litigation relied upon by the Attorney General, but may well derive strong guidance on that issue from the conclusion reached by the judge that determined the litigation in question.[14]
[13][2014] NSWSC 118.
[14]Ibid [22]-[23].
In Attorney-General (NSW) v Martin[15] Simpson J, having reviewed authorities which had considered the application of s 91 of the Evidence Act to applications brought under the Vexatious Proceedings Act (NSW) stated:
As I have indicated above, in my opinion whether the judgments upon which the Attorney General relies can be used for the purpose for which she seeks to use them will depend upon an analysis of the facts that were in issue in the proceedings giving rise to each judgment and the findings of fact made in the judgments.[16]
[15][2015] NSWSC 1372.
[16]Ibid [20].
Simpson J did not exclude from the evidence all of the judgments sought to be relied upon by the Attorney-General. Her Honour admitted into evidence those judgments where there was no fact in issue concerning the nature of the proceedings. However, her Honour concluded that the judgments in respect of applications to strike out proceedings as an abuse of process were inadmissible by reason of s 91. In reference to a judgment of the Land and Environment Court where proceedings had been struck out as an abuse of process, her Honour stated:
The Attorney General relied upon this judgment to establish that the principal proceedings were vexatious within the definition of “vexatious proceedings” in ss 6(a) and 6(c) of the Vexatious Proceedings Act – that is, that the proceedings were an abuse of process of the Land and Environment Court, and that they were instituted or pursued without reasonable ground.
That is, in substance, precisely what Commissioner Dixon found. In other words, the Attorney General seeks to rely upon the factual findings of Commissioner Dixon to establish the existence of the relevant facts for the purposes of s 6. That the proceeding before Commissioner Dixon disclosed “no reasonable cause of action” is a finding of fact that the proceedings were instituted “without reasonable ground”. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(c). Commissioner Dixon also found that the proceedings were an abuse of process. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(a).
Accordingly, s 91 of the Evidence Act precludes reliance upon Commissioner Dixon’s findings of fact for the purpose of proving that the proceedings were vexatious.[17]
[17]Ibid [37]–[39]; see also [65]-[67].
As set out earlier in this judgment, Simpson J concluded that s 91 of the Evidence Act ‘constitutes a considerable fetter on proof of the matters necessary to be proved in order to establish that proceedings are vexatious’.[18]
[18]Ibid [132].
On 16 December 2016, Schmidt J delivered judgment in Attorney-General (NSW) v Mohareb.[19]Her Honour expressly disagreed with the reasoning of Simpson J in Martin regarding the construction of s 91:
[19][2016] NSWSC 1823.
I find myself in disagreement with Simpson J approach to the construction of s 91.
The term “finding of fact” is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.
…
As found in Teoh, decisions of that kind are admissible in proceedings brought under the Vexatious Proceedings Act. Views expressed in such decisions are not binding, but they are relevant to what arises to be decided in proceedings under that Act, not because they are tendered in order to prove the existence of a fact that was in issue in the earlier proceedings, but rather, to establish the fact that the earlier proceedings existed, that the defendant was a party to them, how they were resolved and in some cases, the views the presiding judge expressed on matters which also fall within the definition of “vexatious proceedings”. That term is defined in s 6 of the Vexatious Proceedings Act to include:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
All of those matters also involve questions of law. They must certainly be decided on facts found, but conclusions reached in the earlier proceedings on those questions are not themselves “findings of fact”. Nowadays, given obligations such as those imposed by s 56 of the Civil Procedure Act 2005 (NSW), conclusions that particular proceedings, or an aspect of them, involve an abuse of process; were instituted or conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or were instituted or pursued without reasonable ground, are not infrequently reached in judgments given both at interlocutory and final stages of the proceedings.
That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.[20]
[20]Ibid [25]-[26], [30]-[32].
In the present proceedings, the Attorney-General submitted that the approach of Schmidt J to the construction of s 91 should be preferred to that of Simpson J.[21] The Attorney-General submitted that findings in past proceedings as to the characterisation of the proceedings or claims are not ‘findings of fact’ but expressions of conclusions involving questions of law, or mixed fact and law.[22] The Attorney-General submitted that whether or not a proceeding was an abuse of process, embarrassing, or vexatious, necessarily involves the application of legal concepts to the relevant facts and cannot be comfortably described as a ‘finding of fact’.[23]
[21]Plaintiff’s supplementary outline of submissions, 23 January 2017, [37].
[22]Ibid [37.1].
[23]Ibid.
I have concluded that the judgments of Ormiston JA in Kay and Ashley J in Attorney-General (Vic) v Horvath, Senior,[24] although preceding the enactment of s 91 of the Evidence Act, correctly state the test for the admissibility of evidence to be relied upon in an application for a general litigation restraint order. A judge hearing a general litigation restraint order application must make an independent determination of whether an individual has commenced and/or conducted vexatious proceedings. In doing so, a judge is entitled to have regard to court orders and reasons for judgment in proceedings which are relied upon by the applicant for the order. Insofar as judgments and court orders record findings as to the nature of proceedings (such as whether the proceedings should be dismissed as an abuse of process), this is a finding of mixed fact and law. Section 91 does not operate to preclude reasons for judgment and orders in respect of such proceedings from being admitted into evidence in support of an application for a general litigation restraint order.
[24][2001] VSC 269 (‘Horvath’).
Section 91(1) of the Evidence Act codifies a long-standing common law principle that findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding, except, where relevant, to ascertain the parties to those proceedings and the issues raised in the litigation as disclosed in the reasons for judgment.[25] The judgments in Kay and Horvath preceded the enactment of s 91 of the Evidence Act. However, the admissibility of the judgments and orders relied upon in those proceedings was subject to a common law principle relevantly indistinguishable from the terms of s 91(1). Further, there is a substantial body of authority in respect of s 21(2) of the Supreme Court Act 1986 which has applied the reasoning of Ashley J in Horvath subsequent to the enactment of s 91 of the Evidence Act 2008.[26] These judgments include the judgment of the Court of Appeal in Slaveski v Attorney-General (Vic).[27]
[25]Flinn v Flinn [1999] 3 VR 712, [139]; Hollington v FW Hewthorn & Co [1943] CB 587, 594–97; Land Securities PLC v Westminster City Council [1993] 1 WLR 286, 288; National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700, [48]; Cadbury Schweppes Pty Ltd v Amcor Limited (No 3) [2008] FCA 1668, [4].
[26]Horvath [2001] VSC 269, [28]. See also A-G (Vic) v Knight [2014] VSC 549, [39]; A-G (Vic) v Pham [2014] VSC 311, [18]; Slaveski v A-G (Vic) [2013] VSCA 165, [29].
[27][2013] VSCA 165, [29].
Further, when the Vexatious Proceedings Act 2014 was enacted, s 21(2) of the Supreme Court Act 1986 was of long standing. There is nothing in the terms of the Vexatious Proceedings Act, nor the parliamentary materials accompanying its enactment, which supports the conclusion that Parliament intended that the threshold for declaring an individual a vexatious litigant would be more onerous under the Vexatious Proceedings Act than under s 21 of the Supreme Court Act 1986. To the contrary, s 29(2) broadens the range of matters to which the court may have regard for the purposes of being satisfied whether a general litigation restraint order should be made. The court may take into account any matter it considers relevant. The legislative intention to broaden the material which may be taken into account by the court is reflected in the second reading speech which accompanied the passage of the Vexatious Proceedings Act through Parliament.
The second reading speech of the Attorney-General, Mr Clark, included the following:
Section 21 of the Supreme Court Act 1986 currently enables the Supreme Court to declare a person to be a vexatious litigant, which prevents them from bringing further litigation in a Victorian court or tribunal without first obtaining leave. However, this regime has a number of serious limitations, as identified by the Victorian parliamentary Law Reform Committee in its report into vexatious litigants. For example, section 21 sets a very high threshold for the making of a declaration, which limits the extent to which the court can intervene at an early stage to manage less serious or less frequent vexatious behaviour. The bar on obtaining leave to bring new proceedings is also low and fails to act as a barrier to vexatious litigation. Further, courts and tribunals other than the Supreme Court do not have similar powers and are therefore unable to control vexatious behaviour in their own jurisdictions.
The current regime in section 21 has therefore been of limited utility in controlling vexatious behaviour in the courts and tribunals. The introduction of the bill aims to overcome these limitations by repealing section 21 and introducing a comprehensive new regime for the management and prevention of vexatious litigation. Specifically, the bill provides a range of new powers for the Supreme, County and Magistrates Court and VCAT to manage vexatious behaviour more effectively and at an early stage.
…
In deciding whether to make a litigation restraint order, a court or VCAT is able to take into account any matter is considers relevant, including a person’s full litigation history (in both Victoria and other Australian jurisdictions) and the manner in which the person has conducted litigation in the past. This overcomes a recognised limitation of the current system, which does not allow for consideration of some types of prior litigation such as interlocutory applications and appeals applications and appeals from interlocutory decisions.
…
In creating a comprehensive new regime for the management and prevention of vexatious litigation in Victorian courts and tribunals, including the disposal of unmeritorious litigation at an earlier stage, the bill will improve the effectiveness of the justice system and allow the court and judicial resources to be more effectively allocated to the determination of meritorious cases.[28]
[28]Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 19 February 2014, 371–372 (Robert Clark, Attorney-General).
My conclusion that:
·section 91(1) codified a long-standing common law principle;
·there was a long history of the Supreme Court having regard to judgments and orders when determining vexatious litigation applications, including applications heard subsequent to the enactment of s 91(1); and
·that the Vexatious Proceedings Act and the materials accompanying its passage through Parliament manifest a clear legislative intention to expand the range of matters which can be taken into account by a court informing the requisite satisfaction that an individual has commenced and/or conducted vexatious proceedings
supports a finding that the Court is not precluded by s 91(1) of the Evidence Act from admitting into evidence, judgments and orders relevant to the question of whether a person has persistently and without reasonable grounds conducted vexatious proceedings.
I therefore conclude that all of the judgments and orders annexed to the affidavits of Ms Athanasiadis are admissible.
Orders and declarations of the South Australian Supreme Court
Section 39(5) of the Supreme Court Act 1935 (SA) provides that for the purposes of s 39 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.
The Attorney-General relies upon three orders of the South Australian Supreme Court made pursuant to s 39(5).
On 17 May 2007, Anderson J made orders in Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd.[29]Anderson J’s orders included the following:
1. I allow the application by the National Australia Bank.
2.A declaration be made that Mr Andrew Morton Garrett has persistently instituted vexatious proceedings as defined by s 39(1) of the Supreme Court Act.
3.Mr Garrett should be prohibited from instituting in his own name, causing others to institute, or 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, advisor, receiver, receiver and manager or liquidator (or any of the partners or staff) of the defendant or Sunburst, without the leave of this Honourable Court.[30]
[29]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Anderson J dated 5 May 2007, Supreme Court of South Australia, proceeding number SCCIV-04-127.
[30]Ibid.
On 30 January 2009, Layton J made declarations and orders in Andrew Morton Garrett v Mildara Blass Ltd and Tatachilla Winery Pty Ltd[31] which included the following:
[31]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Layton J dated 30 January 2009, Supreme Court of South Australia, proceeding number SCCIV-96-2244.
1.Leave for Mr Garrett to stand in his capacity as trustee of the Garrett Family Trust is refused.
2.The application to re-open Action 2244 of 1996 is dismissed.
3.The application by Mildara Blass Ltd ACN 004 094 599 is allowed.
4.I declare that Andrew Morton Garrett has persistently instituted vexatious proceedings as defined by section 39(1) of the Supreme Court Act.
5.Mr Garrett is hereby prohibited from:
(a)instituting in his own name; or
(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 Foster’s Wine Estates Ltd, Foster’s Brewing Group Ltd, or any related body corporate, employee, agent or advisor of Foster’s Wine Estates Ltd and Foster’s Brewing Group Ltd without the leave of this Court.[32]
[32]Ibid.
On 30 January 2009, Layton J also ordered in Attorney-General (SA) v Andrew Morton Garrett:[33]
[33]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Layton J dated 30 January 2009, Supreme Court of South Australia, proceeding number SCCIV-07-1342.
1. The application by the Attorney-General is allowed.
2.I declare that Andrew Morton Garrett has persistently instituted vexatious proceedings as defined by section 39(1) of the Supreme Court Act.
3.Mr Garrett is hereby prohibited from:
(a)instituting in his own name; or
(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 without the leave of this Court.[34]
[34]Ibid.
Orders and declarations of the Federal Court of Australia
Section 37AO of the Federal Court of Australia Act 1976 (Cth) provides:
1. This section applies if the Court is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceeding order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
2. The Court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
(b)an order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court;
(c)any other order the Court considers appropriate in relation to the person.
‘Vexatious proceeding’ is defined in s 37AM in terms which are indistinguishable from the definition of vexatious proceeding in s 3 of the Vexatious Proceedings Act 2014.
On 21 November 2014, Mortimer J made the following orders in Andrew Morton Garrett v Make Wine Pty Ltd:[35]
[35]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mortimer J dated 21 November 2014, Federal Court of Australia, Melbourne, proceeding number VID 248/2014.
1. There be judgment for the respondents in the proceeding.
2.There be an order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) that:
Andrew Morton Garrett is hereby prohibited from:
(a)instituting in his own name; or
(b)causing others to institute; or
(c)being concerned, whether directly or indirectly, in the institution of
any proceedings in any registry of the Federal Court of Australia against Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited or any related body corporate, employee, agent or advisor of Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited without the leave of this Court.[36]
[36]Ibid.
On 26 February 2015, Pagone J made orders in Andrew Morton Garrett v Commissioner of Taxation[37] in the following terms:
[37]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Pagone J dated 26 February 2015, Federal Court of Australia, Melbourne, proceeding number VID 600/2014.
THE COURT DECLARES THAT:
1.The applicant is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.
2.By this proceeding the respondents are each persons against whom the applicant has instituted or conducted a vexatious proceeding.
AND THE COURT ORDERS THAT:
3.The applicant is prohibited from:
(a)instituting in his own name; or
(b)causing others to institute; or
(c)being concerned, whether directly or indirectly, in the institution of
any proceedings in any registry of the Federal Court of Australia against the Commissioner of Taxation, any Second Commissioner of Taxation, any Deputy Commissioner of Taxation, any person who is or was employed in the Australian Taxation Office as an “APS employee” within the meaning of the Public Service Act 1999 (Cth), or any agent or advisor of the Commissioner of Taxation without the leave of this Court.
4. The applicant is prohibited from:
(a) instituting in his own name; or
(b) causing others to institute; or
(c)being concerned, whether directly or indirectly, in the institution of,
any proceeding in any registry of the Federal Court of Australia without the leave of this Court.[38]
[38]Ibid.
Proceedings in the Supreme Court of Victoria
In June 2014, Mr Garrett commenced proceedings seeking judicial review in respect of a decision of a delegate of the Legal Services Commissioner: Garrett v Legal Services Commissioner.[39] The proceeding was dismissed by Derham AsJ upon an application by the defendant pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005.[40] His Honour concluded that Mr Garrett’s application had been brought out of time without any satisfactory explanation for the delay, save for Mr Garrett’s contention that he was ‘busy with other matters’. His Honour also concluded that there was no real prospect of the application for judicial review succeeding.[41] Derham AsJ also concluded:
Mr Garrett, by his own admission, seeks to use this proceeding for the collateral purpose of assisting his claim for compensation from the fidelity fund. That is not a proper purpose for the judicial review of the decision of the defendant.[42]
[39]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Garrett v Legal Services Commissioner [2015] VSC 465.
[40]Ibid [74].
[41]Ibid [10]–[11].
[42]Ibid [13].
This finding supports a conclusion that the proceeding was a vexatious proceeding as defined in s 3 of the Vexatious Proceedings Act. The proceeding was commenced for a wrongful purpose, namely the collateral purpose of assisting Mr Garrett’s claim for compensation from the fidelity fund.
In July 2014 Mr Garrett instituted a proceeding seeking judicial review in respect of a decision of a manager of the Legal Services Board: Garrett v Legal Services Board.[43] The Legal Services Board made application pursuant to O 23 of the Supreme Court (General Civil Procedure) Rules 2005 for the proceeding to be dismissed. Mukhtar AsJ granted this application. His Honour concluded:
For the reasons that have been advanced on behalf of the Board, this claim is misconceived, is doomed to fail, and there is no useful purpose in allowing it to proceed.[44]
[43]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Reasons for Decision, Garrett v Legal Services Board, (Mukhtar AsJ, Supreme Court of Victoria, 30 October 2014, proceeding no SCI 2014 03714).
[44]Ibid [2].
In addition to striking out the proceeding, Mukhtar AsJ concluded that an affidavit filed by Mr Garrett was ‘scandalous and offensive’ and ordered it to be removed from the court file.[45] The proceeding was therefore vexatiously conducted within the meaning of s 29(2)(a) of the Vexatious Proceedings Act.
[45]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mukhtar AsJ dated 30 October 2014, Supreme Court of Victoria, proceeding number S CI 2014 03714.
On 2 March 2015, Mr Garrett made an application pursuant to s 4 of the Administrative Law Act 1978 to review a decision of the Legal Services Board to reject a claim he made on the fidelity fund. On 25 March 2015, Mukhtar AsJ ordered exhibits to an affidavit filed by Mr Garrett sworn 2 March 2015 be removed from the court file and placed in a sealed envelope and marked ‘Not to be opened without orders of the court or consent of the Legal Services Board or the Legal Services Commissioner’.[46] His Honour made this order because the exhibits contained scandalous and irrelevant material.[47]
[46]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Mukhtar AsJ dated 25 March 2015, Supreme Court of Victoria, proceeding number S CI 2015 0644.
[47]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Statement of Reasons, Garrett v Legal Services Board, (Mukhtar AsJ, Supreme Court of Victoria, 25 March 2015, proceeding no SCI 2015 00644) [4].
His Honour ordered that Mr Garrett pay the costs of the Board’s application for the removal of the offending material from the court file. His Honour’s ex tempore statement of reasons includes the following:
The order for costs was made for the following reasons. First, because the Board’s application was in the Court’s view wholly justifiable. Secondly, because there was no reason to depart from the ordinary rule that costs follow the event. Thirdly, costs of this application in the circumstances are for a discrete matter and need to be isolated. Fourthly, the costs were made payable forthwith having regard to the Court’s earlier plain order that such material was scandalous and offensive, and Mr Garrett’s conduct in resiling from his willingness on this application to give an undertaking not to use the offending words again, and because of the labours involved in having to scrutinise a 551 page affidavit nearly all of which was irrelevant.[48]
[48]Ibid [6].
Mukhtar AsJ’s order and findings as set out above, support a finding that Mr Garrett conducted the proceeding vexatiously.
On 10 March 2015, Mr Garrett sought to appeal the decision of the Legal Services Board rejecting his claim on the fidelity fund, which was the subject of the two proceedings referred to above: Garrett v Legal Services Board S CI 2014 03714 and Garrett v Legal Services Board S CI 2015 0644. The Legal Services Board brought an application pursuant to O 23 of the Supreme Court (General Civil Procedure) Rules 2005. Derham AsJ granted that application. His Honour’s order dismissing the proceeding records in ‘Other Matters’:
The Board set out extensive reasons for coming to the conclusion that Mr Garrett had no standing to make a claim on behalf of AGFT4 and I need not stay to review those reasons because the decision is not one that is capable of an appeal under s 3.6.23 of the Act. That section governs appeals against–
(a) a decision of the Board to wholly or partly disallow a claim; or
(b)a decision of the Board to reduce the amount allowed in respect of a claim…
This purported appeal is not in respect of a decision of the Board falling within the terms of either paragraph (a) or (b) of s 3.6.23(1) of the Act. It concerns the standing of Mr Garrett to make a claim under part 3.6 of the Act. There has been no investigation of a claim by the AGFT4 and no decision either to disallow the claim (in whole or in part) or to reduce an amount allowed in respect of the claim.[49]
[49]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Order of Derham AsJ dated 19 March 2015, Supreme Court of Victoria, proceeding number S CI 2015 1047.
The reasoning set out above supports a finding that Mr Garrett’s purported appeal was a proceeding that was an abuse of process within paragraph (a) of the definition of vexatious proceeding in s 3 of the Act.
On 15 June 2015, Mr Garrett commenced a further proceeding against the Legal Services Commissioner: Garrett v Legal Services Commissioner & Russell Daly.[50] Mr Garrett sought certiorari and merits review of decisions made by the defendants and a declaration of inconsistent interpretation pursuant to the Charter ofHuman Rights and Responsibilities Act 2006. The Legal Services Commissioner applied for summary dismissal of the proceeding. On 24 December 2015, Riordan J dismissed the proceeding with costs.[51] His Honour stated:
I accept each of the submissions of the defendants and consider that, for the reasons submitted by the defendants, the plaintiff’s claims are either hopeless or for relief beyond jurisdiction. However, before determining the appropriate orders I have had regard to the content of the plaintiff’s draft amended originating motion for the purpose of assessing whether the document threw light on the basis of the relief sought by the plaintiff or otherwise indicated that the termination of the proceeding might lead to an injustice. In my opinion, to the extent that the indorsement on the draft amended originating motion is comprehensible, it is embarrassing and vexatious.[52]
[50]SCI 2015 03169.
[51]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Garrett v Legal Services Commissioner [2015] VSC 772.
[52]Ibid [25].
Riordan J’s reasoning supports a finding that the proceeding was an abuse of process within paragraph (a) of the definition of vexatious proceeding in s 3 of the Act.
Vexatious conduct of defence in Federal Court proceeding Treasury Wine Estates v Garrett VID 949 of 2015
In 2015, Treasury Wine Estates Ltd issued a proceeding in the Federal Court of Australia to set aside a statutory demand issued by Mr Garrett: VID 949 of 2015.[53] On 11 February 2016, Mr Garrett filed an application seeking to join 56 defendants by cross-claim including:
[53]Exhibit P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, [32].
·The partners of Corrs Chambers Westgarth between July 2005 and 10 February 2016;
·The Board of Directors of Foster Brewing Group between November 1996 and 10 February 2016;
·The Board of Directors of Treasury Wine Estates Ltd between December 2011 and 10 February 2016;
·The Federal Court of Australia;
·Ten justices of the Federal Court of Australia;
·Four registrars and a deputy registrar of the Federal Court of Australia;
·The Federal Circuit Court of Australia;
·The Australian Human Rights Commissioner;
·ASIC;
·AusTrade; and
·Various South Australian and Victorian public authorities.[54]
[54]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Interlocutory application filed 8 February 2016, Proceeding No 949 of 2015, Federal Court of Australia, Victoria.
Mr Garrett also sought an order that evidence in 53 other proceedings involving him or entities associated with him initiated between 2004 and 2015 be admitted as evidence in VID 949 of 2015.[55]
[55]Ibid.
As to Mr Garrett’s conduct in the proceedings, Middleton J stated:
Mr Garrett has made multifarious allegations against a wide variety of people without any justification based upon evidence. There is a considerable repetition of the same or similar allegations by Mr Garrett in different proceedings. He engages in a practice of naming large number of respondents while not making clear what are the allegations against them, individually or specifically. The allegations he makes, as a basis of various claims are generally unintelligible prolix and often inflammatory.
The Cross-defendants named in the cross-claims include judges, registrars, public servants, Ombudsmen, the Governor of Victoria, the Governor of South Australia, the Commissioner of Taxation, Commissioners of Police and various lawyers. As I have stated, no properly articulated allegation is made in relation to each Cross-defendant, nor has there been attempt to properly do so. All this is apparent from a reading of the materials filed or sought to be filed by Mr Garrett.
…
I have come to the view that the attempt to institute the cross-claims and counter-claims has been made to harass and annoy without there being any evidentiary foundation or reasonable ground for the allegations made by Mr Garrett. The cross-claims and counter-claims are, in their entirety, an abuse of the process of this Court.[56]
[56]Exhibit PA–1 to P1, affidavit of Patricia Athanasiadis sworn 26 July 2016, Treasury Wine Estates Vintners Ltd v Garrett [2016] GCA 496, [63], [64], [70].
Middleton J’s findings support the conclusion that Mr Garrett’s cross-claim was a vexatious proceeding as defined in s 3 of the Act.
Conclusion
Section 29(1) of the Vexatious Proceedings Act confers power upon the Supreme Court constituted by a judge of the court to make a general litigation restraint order against a person if the court is satisfied that the person has persistently and without reasonable grounds commenced or conducted a vexatious proceeding. I have no hesitation in concluding that Mr Garrett has persistently and without reasonable grounds commenced or conducted vexatious proceedings. The orders of the South Australian Supreme Court and the Federal Court of Australia to which reference is made above would, of themselves, justify this conclusion. However, that conclusion is reinforced by Mr Garrett’s history of conducting proceedings in the Victorian Supreme Court which were an abuse of process and/or relied upon affidavit material which was scandalous and irrelevant.
Mr Garrett was declared a bankrupt in May 2015. I have had regard to the question of whether or not Mr Garrett’s bankruptcy is a discretionary factor which weighs against the making of a general litigation restraint order. Pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth), any action commenced by a person who subsequently becomes a bankrupt is stayed upon that person becoming bankrupt. The trustee in bankruptcy may elect whether to continue the action. A bankrupt’s ability to commence new proceedings is also limited by the Bankruptcy Act. Section 58(1)(b) of that Bankruptcy Act provides that any property acquired by the bankrupt after he or she is declared bankrupt vests in the trustee in bankruptcy. Prima facie, this includes any choses in action constituted by any right which Mr Garrett had to bring proceedings.[57]
[57]Moss (aka Miller) v Eaglestone (2011) 285 ALR 656, [28].
Notwithstanding the provisions of the Bankruptcy Act, there is still potential for Mr Garrett to bring proceedings if such proceedings fall within the exception prescribed by s 116(2)(g) in respect of the right to recover damages for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt. Further, notwithstanding Mr Garrett’s bankruptcy he has continued to conduct proceedings vexatiously. This is illustrated by the conduct of his cross-claim in Treasury Wine Estates Ltd v Garrett, VID 949 of 2015, referred to above. Mr Garrett’s application to join 56 defendants by cross-claim was initiated in February 2016, more than six months after he was declared bankrupt. The manner in which he conducted that application supports a finding that, notwithstanding his bankruptcy, there is a real risk that he will continue to commence and/or conduct vexatious proceedings unless the subject of a restraining order.
Further, the fact that Mr Garrett is an undischarged bankrupt supports a conclusion that he would be unlikely to have any capacity to pay any costs orders made against him. The prospect of a costs order is therefore unlikely to be any disincentive to Mr Garrett commencing baseless proceedings.[58]
[58]A-G (NSW) v Gargan [2010] NSWSC 1192, [130]; Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927, [83].
In considering the exercise of the discretion conferred by s 29(1) I have also had regard to the fact that a general litigation restraint order will not preclude Mr Garrett from bringing proceedings where such proceedings have merit. The effect of a general litigation restraint order is that Mr Garrett cannot commence proceedings unless he has the leave of the court. The order does not constitute a blanket prohibition upon Mr Garrett from continuing or commencing proceedings in a Victorian court. Rather, the effect of the order is to place an onus upon him to demonstrate that any proposed proceeding has sufficient merit to warrant the grant of leave to continue or commence the proceeding. I propose to make an order in the terms of the orders sought in the originating motion:
Pursuant to ss 29 and 30 of the Vexatious Proceedings Act 2014 the Court orders that Andrew Morton Garrett must not, without the leave of the Supreme Court of Victoria do the following:
(a) Continue any proceeding (whether civil or criminal), in any of the following Victorian courts or tribunals:
(i) The Supreme Court of Victoria;
(ii) The County Court of Victoria;
(iii) The Magistrates’ Court of Victoria;
(iv)The Children’s Court of Victoria;
(v) The Victorian Civil and Administrative Tribunal;
(vi)The Victims of Crime Assistance Tribunal.
(b) Commence any legal proceedings (whether civil or criminal) in any of the following courts or tribunals:
(i) The Supreme Court of Victoria;
(ii) The County Court of Victoria;
(iii) The Magistrates’ Court of Victoria;
(iv) The Children’s Court of Victoria;
(v) The Victorian Civil and Administrative Tribunal;
(vi) The Victims of Crime Assistance Tribunal.
I shall provide the parties with an opportunity to make submissions on the question of costs.
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