Australian Prudential Regulation Authority v Garrett (Contempt Application)

FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Garrett (Contempt Application) [2024] FCA 235   

File number(s):

NSD 741 of 2023

Judgment of:

LEE J

Date of judgment:

15 February 2024

Catchwords:

CONTEMPT OF COURT – where respondent ordered to cease unlawfully conducting a “banking business” within the meaning of the Banking Act 1959 (Cth) – where an application made by the Australian Prudential Regulation Authority seeking an order that the respondent be punished for contempt – where respondent made a no case submission – principles relevant to no case submission – no case submission dismissed – matter adjourned part-heard for hearing of respondent’s case

Legislation:

Constitution s 128

Banking Act 1959 (Cth)

Federal Court of Australia Act 1976 (Cth) s 31

Judiciary Act 1903 (Cth) ss 38, 39B, 56, 64, 69(1), 69(3)

Federal Court Rules 2011 (Cth) Pt 42

Cases cited:

Australian Prudential Regulation Authority v Garrett [2023] FCA 956

May v O’Sullivan (1955) 92 CLR 654

Wyszynskiv v Bill [2005] NSWSC 110

David Rolph, Contempt (The Federation Press, 2023)

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

21

Date of hearing:

15 February 2024

Counsel for the applicant: 

Ms S Fonda

Solicitor for the applicant: 

Dentons

Counsel for the respondent: 

The respondent appeared via audio visual link  

ORDERS

NSD 741 of 2023

BETWEEN:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

Applicant

AND:

ANDREW MORTON GARRETT

Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	15 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The no case submission be dismissed.  

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

LEE J:

A        INTRODUCTION

1. Before the Court is an application brought by the Australian Prudential Regulation Authority (APRA) seeking an order that the respondent, Mr Andrew Morton Garrett, be punished for contempt of Court pursuant to s 31 of the Federal Court of Australia Act 1976 (Cth) and Pt 42 of the Federal Court Rules 2011 (Cth).

2. It is unnecessary to rehearse the background to this proceeding or the broader litigious saga which lay behind it (see Australian Prudential Regulation Authority v Garrett [2023] FCA 956). In short, on 14 August 2023, I made orders that Mr Garrett, inter alia, be permanently restrained from carrying on a “banking business” under the Banking Act 1959 (Cth) (Banking Act).

3. By this proceeding, APRA contends that Mr Garrett has breached those orders and, accordingly, that he be punished for contempt. The statement of charge (statement of charge) filed by APRA on 25 September 2023 alleges that Mr Garrett has acted in contempt of Court by continuing to:

   a. carry on banking business in Australia in contravention of s 7 of the Banking Act 1959 (Cth) (Banking Act) [in breach of Order 2(a)];

   b.assume or use the words "bank", "banker", "banking", "banca", "banque" or words or phrases of like…