Edwards v Tandeer Pty Ltd (in liquidation)

[1998] FCA 1811

JUDGMENT No. .k%d .,... l dx%?.

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GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)	No. NG 3167 of 1996
NEW SOUTH WALES DISTRICT REGISTRY	)

BETWEEN: GRAHAM EDWARDS

Applicant

AND:

TANDEER PTY LIMITED (IN

LIQUIDATION)

First Respondent

JOAN MARY JACQUOT

Second Respondent

MARGARET GAI SMITH

Third Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 10 MARCH 1998

By application dated 16 December filed on 18 December 1997, Graham Edwards applies for what are described as "garnishee orders" and "garnishee notices" to be served on two different organisations. The first is the Westpac Bank at The Boulevard, Strathfield, in relation to an account said to be in the name of the second respondent, Joan Mary Jacquot; the second is sought to be served on the National Australia Bank at Liverpool Road, Ashfield in respect of an account in the name of the third respondent, Margaret Gai Smith. Each application seeks to garnishee amounts allegedly standing in those asserted accounts of $3875.51 plus interest and costs of $638.80, apparently to meet an alleged debt by the first respondent to the applicant. There was no appearance by any of the other parties.

With regard to the application concerning the alleged account of Margaret Gai Smith in the National Bank, the Court has previously disposed of three applications by Mr

Edwards, in virtually identical terms. His first application was filed on 16 July 1996 and disposed of on 9 August 1996 when I dismissed the application for the reasons set out in a judgment given at the time. The first of the two subsequent identical or almost identical applications came before Justice Tamberlin on 12 August 1996 in the form of a reference by a Registrar for a direction under Order 46 Rule 7(a) as to whether the process ought to be accepted and filed. In a judgment given on that day, his Honour held that the process should not be accepted and he gave a direction to the Registrar accordingly. The second further application of the same kind came before Justice Sackville on 12 September 1996 when for reasons given by his Honour at the time, the Registrar was also directed, pursuant to Order 46 Rule 7(a), not to accept the application. None of these three decisions was appealed.

For some reason, the present application was nevertheless accepted by the Registry and permitted to be filed on 18 December 1997 although containing a virtually identical application in respect of the alleged account of Margaret Gai Smith at the National Australia Bank. Perhaps the reason why this one was accepted was because it was coupled with the other application on the Westpac Bank in respect of the account of Joan Mary Jacquot. In view of the previous decisions of Justices Tamberlin and Sackville, it should not have been accepted without a Judge's direction that it was supported by some evidence.

In support of this application, Mr Edwards has filed three affidavits, respectively dated 16 December 1997,28 January 1998 and 18 February 1998, annexed to which are a series of documents designed to establish his entitlement to the orders which he seeks. It is obvious that no order could possibly be made in respect of the application for a gamishee order on the Margaret Gai Smith account. Apart from the fact that the matter has now been rejected by the Court on three separate occasions, there has never been any evidence in support of any such order. I direct that the Registry not accept any further applications for garnishee or other similar orders in respect of that account without the prior direction of a. Judge of the Court.

With regard to the application for garnishee of the account of Joan Mary Jacquot with the Westpac Bank at Strathfield, I have carefully read the affidavits which have been submitted by Mr Edwards, and have given attention to the submissions which he has made in support of his application. In the judgment which I gave on 9 August 1996, I doubted that there was power in the Federal Court to grant a garnishee order of the kind sought, although there may well be power in the Court to issue some order in an appropriate case which might have the same or similar effect. In the application now before the Court, the principal source of law relied upon, in terms of the jurisdiction of the Court, are provisions of the New South Wales Supreme Court Act and Rules. These enactments do not provide any power to this Court to act as requested here. The subsidiary reference to two subrules of the Federal Court Rules does not advance the matter because neither of them has any current application. Even if there were power in the Court to gamishee or make any similar order to obtain payment of the debt which Mr Edwards alleges, there is no evidence in any of the material submitted to support the making of any order in this particular case.

I therefore dismiss the application. There is no point in the Court entertaining further

applications for garnishee of the Joan Mary Jacquot account in respect of the debt which Mr Edwards claims unless there is evidence to support it, so I direct that the Registry not accept any further application by him for gamishee orders on the Westpac Bank in the name of Joan Mary Jacquot for the sum referred to, without the prior order of a Judge.