Garrett v Macks (No 2)

[2008] FCA 1420

FEDERAL COURT OF AUSTRALIA

Garrett v Macks (No 2) [2008] FCA 1420

ANDREW MORTON GARRETT v PETER IVAN MACKS and STEPHEN DUNCAN

SAD 101 OF 2008

LANDER J
8 SEPTEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

BETWEEN: ANDREW MORTON GARRETT
Applicant

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	8 SEPTEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Paragraph 6 of the amended notice of motion dated 1 September 2008 be dismissed.

2.The applications for leave to appeal in paragraphs 7 and 8 of the amended notice of motion dated 1 September 2008 against paragraph 2 of Justice Lander’s orders of 26 August 2008 refusing the applicant’s application for costs in paragraphs 8 and 9 of the notice of motion of 18 July 2008 be dismissed.

3.The transcript of today’s hearing be made available to the applicant.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

BETWEEN: ANDREW MORTON GARRETT
Applicant

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE:	8 SEPTEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an order made by me dismissing an application by the applicant for the costs of an application for an extension of time to apply for leave to appeal; the application for leave to appeal; and the appeal and the appearance of the appellant before this Court.  The applicant applied to me for an order that he be joined as a trustee of the Garrett Family Trust in action number SAD5 of 2006.  On 3 July 2008 I dismissed that application.  On 18 July 2008 he filed a notice of motion seeking extension of time within which to apply for leave to appeal and for leave to appeal, and for consequential orders against my orders of 3 July 2008.

2. The order sought by the applicant was that the costs of the application for an extension of time to apply for leave to appeal, the application for leave to appeal and the appeal including the appellant’s appearance before this Court, be paid from the moneys held in the Federal Court Litigants Fund in SAD5 of 2006, prior to the hearing of the appeal and pursuant to the first charge over the assets of trusts held by the appellant in his capacity as trustee of the Garrett Family Trust, the Andrew Garrett Family Trust, the Andrew Garrett Family Trust number 2 and the Andrew Garrett Family Trust No 3.

3. Essentially, the applicant sought to have his costs paid in advance so that he could pursue the application for extension of time, the application for leave and the appeal.  When the matter came on before me on 26 August 2008 I refused that application on the ground that the order sought assumes that the applicant is entitled to the funds which are the subject matter of the proceeding and which is the very matter which is to be determined at trial on 1 December 2008.  I held that I could not make an order of that kind without first deciding that he had the entitlement to those funds and that could not be done until the hearing itself takes place.

4. The present application is for leave to appeal from that decision.  An applicant is not entitled to leave to appeal unless the applicant can persuade the Court that the order which is complained of is attenuated by sufficient doubt such that it would be appropriate for the Full Court to reconsider it and that the applicant would suffer an injustice if the application were refused, supposing the decision to be wrong.  In my opinion, the application has to fail for the reasons which I gave at the time and for the further reasons: that the applicant has failed in the application before me to persuade me that the trust of which he claims to be the trustee ever existed; and for the further reason that, today, I dismissed the application for leave to appeal.

5. In those circumstances, it would be inappropriate to order that any of the moneys presently held in the Federal Court Litigants Fund be paid to the applicant for the purpose of either prosecuting the application for an extension of time, the application for leave to appeal which has now been refused, the appeal which will now not take place, or the hearing before me on 1 December 2008.  In my opinion, I am not satisfied that the order at which I arrived, for the reasons which I gave, is subject to any doubt which would warrant the further examination of the order by the Full Court.  The application for leave to appeal from the order made by me on 26 August 2008, refusing the application for costs, is dismissed.

6. Paragraph 8 of the notice of motion of 1 September is dismissed.  I will direct that the transcript of today’s hearing be made available to Mr Garrett.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       16 September 2008

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms S Maharaj QC
Solicitor for the First Respondent:	Lipman Karas
Counsel for the Second Respondent:	Mr M Hayes
Solicitor for the Second Respondent:	Cosoff Cudmore Knox

Date of Hearing:	8 September 2008
Date of Judgment:	8 September 2008