Garrett, in the matter of various applications by Garrett
[2020] FCA 1774
•10 December 2020
FEDERAL COURT OF AUSTRALIA
Garrett, in the matter of various applications by Garrett [2020] FCA 1774
File numbers: SAD 138 of 2020
SAD 139 of 2020
SAD 140 of 2020
SAD 141 of 2020
SAD 142 of 2020
SAD 144 of 2020
SAD 170 of 2020Judgment of: CHARLESWORTH J Date of judgment: 10 December 2020 Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO, 37AQ, 37AR, 37AS, 37AT
Judiciary Act 1903 (Cth) s 78B
Federal Court Rules 2011 (Cth) r 2.26
Cases cited: Garrett, in the matter of application by Garrett [2020] FCA 1704
Garrett, in the matter of Company One [2016] FCA 703
Division: General Division Registry: South Australia National Practice area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 52 Date of last submission: 8 December 2020 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant was self represented ORDERS
SAD 138 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 139 of 2020 ANDREW MORTON GARRETT AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 140 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 141 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 142 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 144 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 170 of 2020 ANDREW MORTON GARRETT PERSONALLY, AND AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST NO 4 ABN 42 388 204 496 TRADING AS OENOVIVA CAPITAL RESOURCES
Applicant
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds contained in s 37AG(1)(a), any information contained in any document filed or lodged for filing in this proceeding that may tend to identify any of the entities referred to in paragraph 2 of the orders made on 10 June 2016 in action number SAD 134 of 2016 is suppressed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
The applicant in each of these proceedings is subject to a vexatious proceedings order made under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on 26 February 2015. The order prohibits the applicant 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 the Court.
There are seven originating applications before the Court. Each is treated as an application for an order under s 37AR(2) granting leave to institute a proceeding in this Court. I will refer to them collectively as the Leave Applications. They were lodged on 25 September 2020 (SAD 138 of 2020 and SAD 139 of 2020), 29 September 2020 (SAD 140 of 2020), 30 September 2020 (SAD 141 of 2020), 2 October 2020 (SAD 142 of 2020), 4 October 2020 (SAD 144 of 2020) (together, the first six applications) and 27 November 2020 (SAD 170 of 2020) (the seventh application). Pursuant to orders made on 7 October 2020, 12 October 2020 and 1 December 2020, the Leave Applications are now determined concurrently and on the papers.
The Leave Applications are governed by s 37AQ to s 37AT of the FCA Act, here set out in full:
37AQ Proceedings in contravention of vexatious proceedings order
(1)If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:
(a)the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT; and
(b)another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT.
(2)If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.
(3) Without limiting subsection (2), the Court may make:
(a)an order declaring a proceeding is a proceeding to which subsection (2) applies; and
(b)any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.
(4)The Court may make an order under subsection (3) on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the Chief Executive Officer;
(c)a person against whom another person has instituted or conducted a vexatious proceeding;
(d) a person who has a sufficient interest in the matter.
37AR Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.
(3) The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
37AS Dismissing application for leave
(1)The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).
(2)The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.
(3)The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).
37AT Granting application for leave
(1)Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:
(a) order that the applicant serve:
(i)the person against whom the applicant proposes to institute the proceeding; and
(ii) any other person specified in the order;
with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and
(b)give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.
(2)At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.
(3)The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.
(4)The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.
The phrase “vexatious proceeding” is defined in s 37AM(1) as follows:
vexatious proceeding includes:
(a)a proceeding that is an abuse of the process of a court or tribunal; and
(b)a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d)a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
This is not the first time the applicant has applied for leave to commence a proceeding under s 37AR(2). On 1 June 2016, the Court dismissed an application by the applicant to institute a proceeding on the basis that the proposed action was a vexatious proceeding: Garrett, in the matter of Company One [2016] FCA 703. The principles applied in Company One (and applicable in the present cases) are set out at [9] to [19] of the reasons for judgment.
In Company One the Court refused to make an order under s 37AT(1)(a)(i) of the FCA Act that the proposed respondents be served. The identity of the proposed respondents was suppressed from publication, the applicant having made baseless allegations of fraud against them: Company One at [38], [104].
ORDERS
On 7 October 2020, 12 October 2020 and 1 December 2020 the Court made orders to the effect that no document lodged for filing by the applicant in any one of the proceedings be accepted for filing except with the leave of the Court. As discussed below, the applicant has lodged for filing multiple documents in each of the proceedings. Collated in bundles, they are marked for identification in the seven applications as MFI-1 to MFI-7 respectively.
In each of the first six applications, the applicant joined the proposed respondents as if they were proper parties on the applications for leave. On the initiating documents, the applicant stated an intention to serve each Leave Application on the respondents.
By orders made on 7 October 2020 and 12 October 2020, the persons named as respondents on each of the Leave Applications were removed as parties and by further orders on 7 October 2020 and 12 October 2020, the applicant was prohibited from serving any document accepted for filing on any person against whom the applicant proposed to institute proceedings.
After those orders were made, the applicant lodged for filing documents purporting to be notices of discontinuance against some of the proposed respondents. There were no respondents joined on the Leave Applications at that time and, accordingly, the notices of discontinuance have not been accepted for filing. However, the Court will proceed on the basis that the applicant does not intend to press his application for leave to commence a proceeding against the particular respondents named in the notices.
SUPPORTING AFFIDAVIT
Accompanying each Leave Application is a document purporting to be an affidavit for the purposes of s 37AR(3) of the FCA Act. Beyond the title page there is a document styled as an affidavit bearing the date 11 May 2016. That document bears the name of the respondents joined in the Company One proceedings. It appears that the applicant seeks to rely on the same affidavit filed in the Company One proceeding in each of the present Leave Applications.
The affidavit is not sworn, although that is likely attributable to a Special Measures Information Note applicable during the COVID-19 pandemic.
In Company One, the Court identified deficiencies in the affidavit dated 11 May 2016 upon which the applicant had relied in that proceeding. The Court concluded that the affidavit did not list all of the proceedings that the applicant had instituted in any Australian court or tribunal for the purposes of s 37AR(3)(b) of the FCA Act (at [90]).
On the present applications, for the purposes of s 37AR(3)(c) of the FCA Act, the document does not list other applications for leave that the applicant has made under s 37AR(3)(a), including the application made and dismissed in Company One itself. In respect of the third and subsequent Leave Applications, the affidavit does not list each of the other applications lodged on previous days.
The affidavit as filed on the seventh application on 27 November 2020 does not refer to an application made by the applicant dismissed by White J on 26 November 2020: Garrett, in the matter of application by Garrett [2020] FCA 1704.
The facts deposed to in the affidavits otherwise pre-date the Company One proceedings. None of the affidavits deposes to facts relevant to the underlying controversies the applicant seeks to have adjudicated in the proposed proceedings.
In the circumstances I have described, I am not satisfied that the affidavit filed in each of the Leave Applications would satisfy the requirements of s 37AR(3)(c) even if it were duly sworn.
On 13 October 2020 orders were made on the first to sixth applications granting leave to the applicant to file an affidavit upon which he sought to rely for the purposes of s 37AR(3), in substitution of any affidavit already filed in each case. Any substituting affidavits were ordered to be filed on or before 16 October 2020. The Court made it plain to the applicant that a separate and single affidavit for the purposes of s 37AR(3) was to be filed in each of the actions. No substituting affidavit was filed in any one of those actions within the time specified and no application to extend the time specified in the order was made. As has been mentioned, the same defective document is now sought to be relied upon in support of the seventh application filed on 27 November 2020.
SUBMISSIONS
The applicant was afforded the opportunity to file written submissions not exceeding 10 pages in support of each of the first six applications on or before 21 October 2020.
Since that order was made, the applicant has lodged for filing multiple documents in each of those proceeding (110 in total). None of them bear the title of submissions, many of them exceed 10 pages. None of the documents is accompanied by any application to extend the time for the filing of submissions in each case. It is not for the Court to sift through the multitude of documents lodged for filing by the applicant in search of material that may resemble submissions.
On the seventh application, the applicant was afforded the opportunity to file written submissions not exceeding 10 pages on or before 8 December 2020. On that day, the applicant filed written submissions exceeding 10 pages. Non-compliance with the page limit will be excused. The submissions have been accepted for filing and have been read. The applicant lodged for filing a further seven documents in the seventh application on the same day. The submissions and other documents are discussed later in these reasons.
NOTICES
In each of the first six applications, the applicant filed three documents, each of which is identified on its title sheet as a being a “Notice of a Constitutional Matter under s 78B Judiciary Act 1903”. The first is a copy of the Charter of the Commonwealth. The second appears to be a letter addressed to “The Commissioner of Taxation”. The third is a letter to “The Commonwealth Attorney General” and other recipients. The documents do not take the form of a notice issued pursuant to s 78B of the Judiciary Act 1903 (Cth). They do not properly identify a Constitutional issue arising by reference to any one of the Leave Applications.
The applicant’s conduct in filing those documents provides the Court with some insight into the manner in which he would seek to conduct the substantive proceedings should he be granted leave to commence them. When considered together with the correspondence discussed below, it is reasonable to infer that the applicant would seek to use each proceeding as a means of airing grievances with non-parties in respect of issues that bear little or no relation to the claims for relief made against the proposed respondents in each action.
The Notices purportedly filed pursuant to s 78B of the Judiciary Act do not otherwise give rise to any question of substance requiring consideration and disposition on any one of the first six applications.
Two documents lodged for filing on the seventh application were described by the applicant at the time of lodgement as notices issued under s 78B of the Judiciary Act. They have similar features to those filed in the other applications. They do not identify a Constitutional issue properly arising either on the seventh application or in the substantive proceedings sought to be commenced. As in the other applications, they support the inference that the applicant is motivated to use the Court’s processes for the purposes of airing grievances against non-parties that bear no proper apparent relation to the relief sought against the proposed respondent. The documents are within the bundle marked MFI-7. They are not accepted for filing.
CORRESPONDENCE
At a case management hearing in respect of the first six applications, the applicant confirmed that he did not oppose the Court having regard to the correspondence he has sent to (or copied to) the South Australia District Registry for the purpose of determining any one of them. He invited the Court to consider that material.
The correspondence pertaining to the first six applications up to and including 8 December 2020 is contained in a bundle (marked MFI-8). It comprises more than 40 email communications. The following observations may be made about its contents.
Some of the communications are addressed directly to the Court. Others are apparently directed to email addresses that appear to be those of the proposed respondents and a multitude of other persons. In all of the communications, the applicant refers to himself as “Rex”. He identifies proceedings in this Court by their action number, and titles the proceedings in a manner that again describes himself as “Rex” and that names one or more respondents as though there exists an adversarial action on foot against them. In several communications, the applicant refers to courts or governmental authorities as being insolvent or otherwise as having external controllers appointed. The applicant describes himself as the “Managing Controller” appointed to (among other things) the Crown.
The correspondence contains allegations of corruption or other wrongdoing directed toward judicial officers or persons against whom the applicant appears to bear grievances.
By some of the communications the applicant has purported to serve court documents on the proposed respondents, notwithstanding that he has not been granted leave to commence any proceeding against them and notwithstanding s 37AR(4) of the FCA Act. As has been mentioned, on 7 October 2020 and 12 October 2020 the Court made orders on the first six applications that the documents not be served. Some of the communications purporting to serve documents post-date the making of those orders.
In light of the reasons published in Company One, I not consider the applicant’s conduct in purporting to serve documents on any person to be explained by ignorance as to the Court’s processes.
Considered as a whole, the bundle of correspondence reinforces the conclusion that the proposed proceedings are vexatious proceedings as defined in s 37AM of the FCA Act. By purporting to serve the documents, the applicant has conducted the Leave Applications themselves in a manner that has harassed and annoyed the recipients. Overall, the correspondence is revealing of the manner in which the proposed proceedings would be conducted should leave be granted to institute them.
INTERLOCUTORY APPLICATION
On 12 October 2020 the applicant lodged in the South Australia District Registry a handwritten document titled “Interlocutory application in person SAD 38 – 144 REX V VCAT & Ors”. By the first substantive paragraph of the letter, the applicant asserted that he is not subject to the jurisdiction of the courts and tribunals of Australia.
DISPOSITION
The matters referred to above provide a sufficient basis for the dismissal of the Leave Applications, whether considered separately or together.
The Court concludes that if leave were to be granted to institute the proposed proceedings, the proceedings would be conducted in a manner objectively having the effect of harassing and annoying the respondents, non-parties to the proceedings and the Court itself. That conclusion is reached irrespective of whether the applicant is in a genuine dispute with any one of the proposed respondents and irrespective of the merits of his position in any one of the disputes.
The circumstance that the applicant does not consider himself to be bound by the orders of the Court renders it unnecessary to give any substantive consideration to the claims for relief sought to be made in each of the proposed proceedings (with the exception of action SAD 138 of 2020 discussed below) or the asserted factual basis for the claims. It constitutes an abuse of the Court’s processes for the applicant to invoke the Court’s jurisdiction whilst at the same time denying the Court’s authority to make orders binding upon him.
It is appropriate to elaborate in respect of the first and seventh applications.
SAD 138 OF 2020
This is an application for leave to bring an application for judicial review in relation to four decisions made by two Registrars of the Court. The Court has regard to the identity of the proposed respondents, the nature of the powers they exercised in relation to the applicant and the relief sought against them.
The Registrar in each case refused to accept a document or documents for filing under r 2.26 of the Federal Court Rules 2011 (Cth). It provides:
2.26Refusal to accept document for filing—abuse of process or frivolous or vexatious documents
A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:
(a) on the face of the document; or
(b)by reference to any documents already filed or submitted for filing with the document.
The Court has supervisory jurisdiction in respect of those powers. It is clearly important that the powers are exercised lawfully, given that they represent a potential obstacle to a putative litigant attempting to access justice by lodging initiating documents in the Court.
The Registrars’ reasons for refusing to accept the documents are set out in correspondence forming Annexures 1, 2, 3 and 4 of the application. The effect of the reasons in each case is that:
(1)by reason of the order of Justice Pagone made on 26 February 2015, the applicant was prohibited from instituting any proceeding in the Court without first obtaining leave to do so; and
(2)the applicant did not have leave to institute the proceeding he had sought to commence by lodging the documents.
The affidavit filed in support of the application for leave does not expressly identify which document or documents the Registrar refused to accept for filing in each instance.
Annexure 5 to the originating application is a document titled “STATEMENT OF GROUNDS FOR COMMON LAW JUDICIAL REVIEW AND MAKING OF ORDERS IN THE NATURE OF ‘QUO WARRANTO’ AND/OR ‘HABEAS CORPUS’ AND/OR ‘PROHIBITION’ AND/OR ‘MANDAMUS’ AND/OR ‘CERTIORARI’”. The document goes on to state grounds of review of a decision made by the Victorian Civil and Administrative Tribunal, being an administrative tribunal established under a State law.
On the assumption that Annexure 5 is a document the Registrars refused to accept for filing, then the Registrars were correct to characterise it as one that would have the effect of instituting a proceeding without leave first having been granted for its commencement. The applicant has not demonstrated that he had leave to commence any such proceeding at the time that the Registrars’ decisions were made. Had the documents in question been accepted for filing by the Registrars, the proceedings so commenced would have been stayed by the operation of s 37AQ(2) of the FCA Act. It cannot reasonably be argued otherwise.
On 17 October 2020, the applicant lodged a 24 page bundle consisting of two letters. The first letter is titled “Notice to Cease and Desist”. It is contained within MFI-1 at page 1. It is not necessary to extract the content of that document here. It is sufficient to observe that the applicant, by that letter, purports to be vested with powers sufficient to remove a member of the judiciary from office and to perform a “responsible government reset”. The other document in the bundle is directed to the Commissioner of Taxation. It bears no apparent relation to the relief sought on the proposed application for judicial review against the Registrars, nor to the matters raised in the document that the Registrars refused to accept for filing.
In the circumstances described, the applications for judicial review are themselves vexatious proceedings, both because they have no prospects of success and because of my earlier conclusion that the proceeding (if commenced) would be conducted in a manner that would waste the administrative and judicial resources of the Court.
SAD 170 OF 2020
The applicant sought and obtained an order that the seventh application be determined concurrently with the other applications. It is reasonable to assume that the applicant does not oppose the Court having regard to correspondence and documents bearing on the first six applications for the purpose of determining the seventh. If that assumption is wrong, the seventh application should nonetheless be dismissed by reason of the absence of any affidavit fulfilling the requirements of s 37AR(3) of the FCA Act.
It is appropriate to give additional reasons for dismissing the seventh application by reference to the written submissions filed on 8 December 2020.
The proposed proceeding is said to be an application for judicial review of decisions made by a corporate entity. The submissions disclose no arguable basis for concluding that the proposed respondent is a person against whom this Court’s powers of judicial review may be exercised.
By his written submissions, the applicant expresses dissatisfaction with the outcome of multiple proceedings in this Court. Among other things, the applicant purports to have exercised powers under s 61 of the Constitution to “vitiate” judgments of the Court that have affected his interests. He asserts that each of the judgments of this Court is a nullity. To the extent that the applicant maintains that previous judgments of this Court are wrongly decided, it is not competent to challenge those judgments by invoking the original jurisdiction of the Court. The proceedings in respect of which leave is sought are not proceedings directed to such questions in any event.
Also on 8 December 2020, the applicant lodged for filing a further seven documents, two of which appear to be identical. They are contained in a bundle marked MFI-7. The Court has read the documents with a view to determining whether they should be accepted for filing. Two of the documents have been referred to earlier in these reasons. The documents do not otherwise contain any material that would alter the conclusions reached in relation to the seventh application. To a large extent they evidence that the applicant is aggrieved by administrative decisions relating his personal tax affairs or the tax affairs of entities he purports to control. That is a common theme running throughout the documents lodged for filing in all of the Leave Applications. It reinforces the conclusion that if leave were to be granted, the applicant would use the processes of the Court to agitate wide ranging grievances that are unrelated to any underlying controversy involving the proposed respondent.
I make no finding as to whether or not the Leave Applications are themselves an abuse of the Court’s processes. It is sufficient to find that the affidavit filed in support of each application does not comply with the statutory requirements and, as a discrete reason for dismissal, that each of the proposed proceedings is a vexatious proceeding as defined in s 37AM of the FCA Act.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 10 December 2020
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