Australian Prudential Regulation Authority v Garrett

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FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Garrett [2023] FCA 956  

File number: NSD 741 of 2023
Judgment of: LEE J
Date of judgment: 14 August 2023
Catchwords: BANKING AND FINANCIAL INSTITUTIONS – “jumble of gobbledygook” – where respondent claims that trial judge and other judges are bankrupts and should be extradited and imprisoned in Siberia or Outer Mongolia – where respondent claims to be repository of all public powers in Commonwealth of Nations – injunctions –application by Australian Prudential Regulation Authority (APRA) to permanently restrain applicant from conducting “banking business” within the meaning of the Banking Act 1959 (Cth) (Banking Act) – where respondent vexatious litigant – latest iteration in broader litigious saga – where respondent associated with various non-legal “banking” entities – where entities controlled by respondent carrying on “banking business” without authorisation under the Banking Act – permanent injunction granted
Legislation:

Constitution ss 51(xiii), 61

Australian Prudential Regulation Authority Act 1998 (Cth)

Banking Act 1959 (Cth) ss 5, 7(1), 8(1), 65A, 65A(2), 65A(3), 65A(6)(a), 65A(11), 65A(12), 66, 66(4)(b), 66(4)(c)

Federal Court of Australia Act 1976 (Cth) ss 23, 37AO

Reserve Bank Act 1959 (Cth) s 44

Federal Court Rules 2011 (Cth) rr 8.05, 8.06, 10.01

Cases cited:

Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608

Australian Securities Investment Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559

Bradley v The Queen [2020] QCA 252

Garrett, as Trustee for the Garrett Family Trust [2009] FCA 252

Garrett v Commissioner of Taxation [2015] FCA 117; (2015) 147 ALD 342

Garrett v Foster’s Wine Estates Limited [2007] FCA 253

Garrett v Make Wine Pty Ltd [2014] FCA 1258

Garrett v Tseng [2007] FCA 93

Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360

Rubis v Garrett as Trustee of the Andrew Garrett Family Trust Trading as Dynamic Commercial Workforce Solutions [2018] FCA 1760

Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020)
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 71
Date of hearing: 14 August 2023
Counsel for the applicant: Ms S Foda
Solicitor for the applicant: Australian Prudential Regulation Authority
Counsel for the respondent: The respondent did not appear

 

ORDERS

NSD 741 of 2023
BETWEEN:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Applicant
AND:

ANDREW MORTON GARRETT

Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

14 AUGUST 2023

PENAL NOTICE

TO:                ANDREW MORTON GARRETT

IF YOU:

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY…

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Details
Case
[2023] FCA 956
Decision Date

CaseChat Overview and Summary

In the case of Australian Prudential Regulation Authority v Garrett, the Australian Federal Court was tasked with deciding whether the respondent, Mr Garrett, could be permanently restrained from conducting banking business in Australia without the necessary authorisation. The dispute arose from Mr Garrett's claims to hold various public offices and his assertion that he was the repository of all public powers in the Commonwealth of Nations. Despite these claims, Mr Garrett was associated with several entities that were conducting banking activities without the required authorisation under the Banking Act 1959 (Cth). The Australian Prudential Regulation Authority (APRA) sought a permanent injunction to restrain Mr Garrett from continuing these activities.

The central legal issues before the court were whether Mr Garrett and the associated entities were carrying on a banking business without proper authorisation and whether the court had the jurisdiction to grant the injunction sought by APRA. The court needed to determine if Mr Garrett was using restricted words without APRA's approval and if he was conducting banking business in contravention of the Banking Act.

The court found that Mr Garrett, through the associated entities, was indeed conducting a banking business without the necessary authorisation. The entities were not registered with APRA and had not obtained the required consent to use restricted words such as "bank" or "banking". Additionally, the entities were not in possession of an authority to carry on banking business under the Banking Act. The court concluded that it had jurisdiction to hear and determine the application, as the matter arose under a law made by the Parliament, specifically the Banking Act. Based on these findings, the court granted the injunction, restraining Mr Garrett from conducting any banking business in Australia without proper authorisation.

Orders

Orders of the court

1. In these orders:

“purported bank” means the “Dynamic Capital Bank”, “Banca di Como”, “Banque de Capital Dynamique”, any derivation thereof, or any other body, whether incorporated or not, described as a “bank” which body:

(a) does not have the consent of the applicant under s 66 of the Banking Act 1959 (Cth) (Banking Act); or

(b) is not in possession of an authority under s 9 of the Banking Act to carry on banking business; or

(c) is not otherwise the subject of an order by the applicant pursuant to s 11 of the Banking Act that determines that s 66(1) of the Banking Act does not apply.

2. The respondent be permanently restrained under s 65A of the Banking Act, whether by himself, his servants or agents or otherwise, from orally or in any written or electronic form:

(a) carrying on any banking business in Australia in contravention of s 7 of the Banking Act;

(b) assuming or using the words “bank”, “banker”, “banking”, “banca”, “banque” or any words or phrases of like import (whether or not in English) in relation to any purported bank, business or purported business in contravention of s 66 of the Banking Act; and

(c) advertising, representing or stating that any purported bank, business or purported business will carry on banking business.

3. The respondent be permanently restrained under s 23 of the Federal Court of Australia Act 1976 (Cth), whether by himself, his servants or agents or otherwise, from carrying on any activities incidental to carrying on a “banking business” as defined s 5 of the Banking Act, including but not limited to, issuing any bill or note for the payment of money payable to bearer on demand and intended for circulation, or which purports to be a bill or note for the payment of money payable to bearer on demand and intended for circulation, in contravention of s 44 of the Reserve Bank Act 1959 (Cth).

4. The respondent pay the applicant’s costs of the proceedings.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The balance of these reasons is organised under the following headings:BBACKGROUND CPROCEDURAL HISTORYDA PRELIMINARY ISSUE AS TO SERVICEETHE APPLICATIONFTHE RELEVANT LAWGMR GARRETT’S CONTENTIONSHCONSIDERATIONICONCLUSION AND ORDERSB BACKGROUND The background facts are set out in an affidavit affirmed by Mr Christopher Alexander Sheehan dated 18 July 2023 (Sheehan Affidavit) and an affidavit sworn by Mr Nicholas Hugh Palmer on the same date (Palmer Affidavit). What follows is largely drawn from those affidavits and matters summarised in APRA’s concise statement. Also relevant, however, is a barrage of emails sent by Mr Garrett to APRA and other individuals and entities, copied to my Associate, a bundle of which was marked Exhibit A on the application. I will say something first about that correspondence, before turning to the relevant entities the subject of APRA’s application for final relief today.B.1 Mr Garrett Since the commencement of this proceeding in July 2023, Mr Garrett has sent a number of emails to APRA, copying my Associate and, incidentally, almost every other email address associated with this Court and a miscellany of other email addresses. In those emails, Mr Garrett styles himself as the:GLOBAL LICENSOR OF DISCRETIONARY PUBLIC POWERS, GLOBAL MANAGING DIRECTOR, GLOBAL MANAGING TRUSTEE; CHAIRMAN OF BOARD OF TRUSTEES CROWN ATTORNEY GENERAL, TRUSTEE IN BANKRUPTCY, LIQUIDATOR, MANAGING CONTROLLER As best I understand it, it is in this capacity that Mr Garrett claims to be the personal repository of all public powers in the Commonwealth of Nations. In a letter attached to an email sent to my Associate in July (which appears to have been filed in proceedings commenced in the United States District Court in Colorado), Mr Garrett claims, among other things, that:I am the Managing Controller and Liquidator appointed to the Crown (Liquidator and Managing Controller Appointed), Globally, as well as holding Hereditary Public Office as Crown Attorney General appointed to the Commonwealth of Nations. …I am a person exercising hereditary discretionary public powers conferred under THE EIGHT ENACTMENTS and Hold s61 of the Commonwealth of Australia Constitution Act 1900 (UK), the assets of THE CEST TUI QUE VIE TRUST, THE NORTH AMERICA PROPERTY TRUST, THE AUSTRALIA PROPERTY TRUST, THE UNITED KINGDOM & IRELAND PROPERTY TRUST, THE INDIA PROPERTY TRUST, THE AFRICAS PROPRTY TRUST, THE CANADA PROPERTY TRUST, THE NEW ZEALAND PROPERTY TRUST, THE REMAINING BRITISH EMPIRE DOMINIONS PROPERTY TRUSTS and all treaties executed between Members of the Commonwealth of Nations as personal property. In exercising these purported powers, Mr Garrett is said to have placed various government bodies (including this Court) into liquidation. He also claims to have placed various former and current Judges of this Court (including myself) into bankruptcy. He also seeks the extradition of the same judges to, and their imprisonment in, the People’s Republic of China (although Mr Garrett now apparently favours, for reasons that are not pellucid, Siberia or Outer Mongolia). This is illustrated in two emails copied to my Associate, the first in July:Dear Mesdames et Messieurs The proliferation of Numbnuts as a result of failure to exercise discretionary public powers conferred under enactments in the Public Interest beggars belief. The Public Trust in Australia has been betrayed by all three branches of Government and most particularly by the Australian Judiciary; AUSTRALIA IS POORLY SERVED BY THE ACTING JUDICIARY, ACTING ATTORNEYS GENERAL, ACTING SOLICITORS GENERAL, ACTING GOVERNORS, PARLIAMENTARIANS, COMMITTEES ETC. I have named 671 Convicted persons and entities in the Hong Kong Proceedings which will no doubt become much larges on completion of disclosure of all materials facts in accordance with the Crown Common Law Model Litigant Obligations for Continuous Full Disclosure. THE FINDINGS OF MORTIMER IN 2014 (as attached) ARE CRIMINAL …….is this the best you can do as Chief Justice………….the only Justice who shows any sense of balance is Logan J………..The above and particularly Charlesworth, White, Kenney, Beach, Middleton, Davey, Pagone and all of the South Australian and High Court Judiciary should be extradited and incarcerated in accordance with the Mandatory Life Sentence applicable under South Australian Law. I am content to fund the building of the Prison in China.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that Mr Garrett, through the relevant entities, is using words restricted under ss 66 of the Banking Act without approval from APRA, and is conducting a banking business in Australia without the proper authority in contravention of ss 7 and 8 of the Banking Act. I CONCLUSION AND ORDERS I will make the appropriate orders and direct they be served on Mr Garrett, with the following endorsement: Mr Garrett should reflect carefully on this endorsement and ensure he complies with the orders of the Court and the terms of the injunction.

Ratio Decidendi

Legal Principle Established

Fourthly, the Court plainly has power to hear and determine the present application. Jurisdiction is the authority of the Court to adjudicate: Australian Securities Investment Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 (at 570 [3] per Gleeson CJ, Gaudron and Gummow JJ); see also Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020). This Court’s jurisdiction is relevantly attracted by a matter arising under a law made by the Parliament (here, the Banking Act): see Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360 (at 377–379 [47]–[58] per Lee J).H CONSIDERATION I am satisfied that permanent injunctions should be issued in the form sought by APRA, for the following reasons. First, as noted earlier, the relevant entities are unregistered and are therefore not APRA regulated entities as they are not authorised or licensed to carry on a banking business in contravention of s 66 of the Banking Act. Secondly, APRA has not given consent to the relevant entities or Mr Garrett to assume the word “bank”, “banca” or “banque” or any words or phrases of like import (whether or not in English). Nor has APRA made a determination pursuant to s 11 of the Banking Act that s 66(1) does not apply to one or more of the relevant entities. Thirdly, DCB provides banking and financial services. In an “AUSTRAC update business profile form” submitted by Mr Garrett on 21 October 2022, annexed to the Palmer Affidavit (as Annexure NP-1) (at 27–29), Mr Garrett stated that DCB provided “banking and financial services”. As noted above, under the “About” tab, the DCB website describes DCB as a “private investment and trading bank” with (purportedly) various offices located throughout Australia. Further, on Christmas Day 2022, Mr Garrett sent a letter to the Prime Minister’s office and the ASIC Chairman stating, among other things, that (see Sheehan Affidavit (at [52(a)]):i.DCB “started issuing International Bills in June 2016” ii. DCB has been “trading as a Merchant Bank on the 5th January 2016”; and iii. DCB has been “keeping records of payments made to beneficiary accounts and keep records of those payments in Bank Statements of Account supported by Bank Guarantee for Moneys held to account”. It follows that Mr Garrett, through the relevant entities, is using words restricted under ss 66 of the Banking Act without approval from APRA, and is conducting a banking business in Australia without the proper authority in contravention of ss 7 and 8 of the Banking Act. I CONCLUSION AND ORDERS I will make the appropriate orders and direct they be served on Mr Garrett, with the following endorsement: Mr Garrett should reflect carefully on this endorsement and ensure he complies with the orders of the Court and the terms of the injunction.