Garrett v Make Wine Pty Ltd

Case [2014] FCA 1258

FEDERAL COURT OF AUSTRALIA

Garrett v Make Wine Pty Ltd [2014] FCA 1258

Citation: Garrett v Make Wine Pty Ltd [2014] FCA 1258
Parties: ANDREW MORTON GARRETT v MAKE WINE PTY LTD, VOK BEVERAGES PTY LTD and TREASURY WINE ESTATES VINTNERS LIMITED
File number: VID 248 of 2014
Judge: MORTIMER J
Date of judgment: 21 November 2014
Catchwords:

PRACTICE AND PROCEDURE – Application for summary judgment pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) – whether the proceeding has any reasonable prospects of success – whether the applicant has standing – whether frivolous or vexatious – whether an abuse of the processes of the Court – application granted

PRACTICE AND PROCEDURE – Vexatious proceedings order against applicant sought by respondents pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) – whether applicant has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals – order made
Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2 s 18
Corporations Act 2001 (Cth) Part 5.4, s 495G
Federal Court of Australia Act 1976 (Cth) ss 31A, 37AO, 37M
Supreme Court Act 1935 (SA) s 39
Trade Marks Act1995 (Cth) ss 58, 88

Federal Court Rules 2011 (Cth) rr 8.05, 26.01

Cases cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd (2007) 248 LSJS 349; [2007] SASC 173
AonRisk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178
Garrett v Australian Trade Commission [2014] FCA 575

Garrett v Bransbury [2007] FCA 529

Garrett v Deputy Commissioner of Taxation [2014] FCA 576
Garrett v Foster’s Wine Estates Ltd [2007] FCA 253
Garrett v Macks [2008] FCA 1419
Garrett v National Australia Bank [2007] FCA 530
Garrett v Rann [2007] FCA 528

Garrett v Westpac Banking Corporation [2007] FCA 439

Garrett v Westpac Banking Corporation [2007] FCA 525
Kuczborski v The Queen [2014] HCA 46
Liao v New South Wales [2014] NSWCA 71
Pakallus v Cameron (1982) 180 CLR 447
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Re Bankrupt Estate of Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576
Re Garrett as Trustee for the Garrett Family Trust [2009] FCA 252
Reichel v Magrath (1889) 14 App Cas 665
Rogers v The Queen (1994) 181 CLR 251
Samootin v Official Trustee in Bankruptcy (No 2) [2012] FCA 316
Samootin v Shea [2010] NSWCA 371
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Spencer v…

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AGLC
Garrett v Make Wine Pty Ltd [2014] FCA 1258
Case
[2014] FCA 1258
Decision Date

CaseChat Overview and Summary

The case of Garrett v Make Wine Pty Ltd was heard by the Federal Court of Australia, where the respondents, Make Wine Pty Ltd, VOK Beverages Pty Ltd, and Treasury Wine Estates Vintners Limited, sought summary judgment against the applicant, Andrew Morton Garrett, in relation to his claims of trade mark infringement, breach of contract, and other related matters. The respondents argued that Garrett's claims had no reasonable prospects of success, that he lacked standing, and that his proceedings were vexatious. They also sought a vexatious proceedings order against Garrett pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth).

The court had to determine whether the respondents' application for summary judgment should be granted, and whether the vexatious proceedings order should be made against Garrett. The court considered the evidence and arguments presented by both parties, including the history of proceedings brought by Garrett and their outcomes. The court noted that Garrett had difficulty confining the factual matters on which he wished to rely in his application, and that his claims involved a complicated factual matrix of events and a multiplicity of proceedings with overlapping claims.

In its reasoning, the court found that Garrett's claims of trade mark infringement had no reasonable prospects of success, as three of the four trade marks in issue were expressly assigned to Mildara Blass in the 2000 Deed, and the fourth trade mark was a composite mark that used Garrett's stylised script signature, which was also transferred to Mildara Blass in the 2000 Deed by way of a perpetual licence. The court also found that Garrett lacked standing to bring his claims, as the findings in previous cases bound him and the third respondent. Furthermore, the court found that Garrett's proceedings were vexatious, as he had instituted numerous proceedings in the past that were dismissed, struck-out, or refused due to being hopelessly misconceived, incoherent, vexatious, or having no reasonable prospect of success.

The court granted the respondents' application for summary judgment and made a vexatious proceedings order against Garrett, prohibiting him from instituting any proceedings in the Federal Court of Australia against the respondents or any related body corporate, employee, agent, or adviser without the leave of the Court. The court also ordered Garrett to pay the respondents' costs of and incidental to the proceeding, including any reserved costs.

Orders

Orders of the court

1. There be judgment for the respondents in the proceeding.

2. There be an order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) that:

Andrew Morton Garrett is hereby prohibited 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 proceedings in any registry of the Federal Court of Australia against Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited or any related body corporate, employee, agent or adviser of Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited without the leave of this Court.

3. The applicant is to pay the respondents’ costs of and incidental to the proceeding, including any reserved costs.

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

Background

Background to the litigation

Neither party made any objections to the reception of the material in the Court Book into evidence. In addition, Mr Garrett sought to tender a second and updated psychological report from his treating psychologist. A report from 2010 was already in evidence. The respondents did not object to the tender, but submitted as a matter of weight it was unclear how either report could be of any probative value in any of the issues on the r 26.01 application. Given the approach I have taken to the determination of the respondents’ application, it is not necessary for me to make any findings about the matters in the two psychological reports.RELEVANT FACTS It was a difficult task for Mr Garrett to confine the factual matters on which he wished to rely in this application. Given he is self-represented and the respondents seek summary judgment on all his claims, his difficulty is explicable. Mr Garrett was concerned to ensure the Court understood the indisputably complicated factual matrix of events which occurred after the 2000 Deed, and which led him to make the wideranging claims he has made in this proceeding. Understanding the factual background, not only as Mr Garrett would present it, but also more objectively, is made all the more difficult because of the multiplicity of proceedings brought by Mr Garrett in the past, many of which have involved overlapping claims. I take the following facts from a combination of sources, including the evidence in this r 26.01 application and the relevant facts as found and as set out in the judgments of Lander J in Universal Holidays Pty Ltd v Tseng [2008] FCA 1011 and Layton J in Garrett v Mildara Blass Ltd [2009] SASC 19, both judgments being central to several of the issues in the current application. The factual and legal findings in those cases bind Mr Garrett and, at least, the third respondent in this proceeding. In a statement filed in proceedings in the South Australian Supreme Court in the proceeding before Layton J, and which was annexed to his first affidavit in this proceeding, Mr Garrett described his entry into the winemaking industry in the early 1980s and the successful businesses he built within it. He described his development of a company called “The Wine Company”, through which he made a wide range of wine and which by 1989 had a turnover of $12 million, with an annual crush of 6,500 tonnes. He described the creation and registration as business name of “Andrew Garrett Wines” in the mid-1980s, and the development of a stylised signature of his name which became regularly used on wine labels. He deposed to the registration of trade marks from the early 1990s which involved his signature, and during the same period to the expansion of the business through the introduction of investors. However, the introduction of outside investors also appears on the evidence to have spelled the beginning of difficulties for Mr Garrett’s personal involvement in the now extensive winemaking business of The Wine Company and the Andrew Garrett labels. By agreement Mr Garrett left The Wine Company in May 1993, and by early 1994 had embarked on a new venture in winemaking with Tatachilla Winery Pty Ltd, although his involvement appears to have been as an employee. A winery was purchased, new wines produced and there was an attempt by Mr Garrett to register new trade marks, which was rejected because of similarity with the stylised signature still owned by The Wine Company.

Evidence

Evidence Before The Court

This extract makes it plain that Mr Garrett was aware that what he called the “debt matters” would be raised at the interlocutory hearing on 5 August 2014 only in the context of them forming part of the subject matter of the respondents’ application under r 26.01.EVIDENCE ON THE APPLICATION The respondents read and relied on an affidavit of Ms Claire Newhouse affirmed on 7 July 2014. Ms Newhouse is a solicitor acting on behalf of the respondents. Ms Newhouse’s affidavit deposed to the history of proceedings brought by Mr Garrett and their outcomes. It also exhibited a considerable number of documents drawn from those proceedings, and communications between various parties including between Mr Garrett and the third respondent and its solicitors. Her affidavit also sought to prove all payments which TWEV submitted it was obliged to make had been made pursuant to the 2000 Deed. Mr Garrett filed three affidavits, but sought to rely on only two of them. His first affidavit dated 29 May 2014 deposed to matters leading to the commencement of this proceeding, together with some matters concerning his bankruptcy. His third affidavit (the second one being the affidavit he informed the Court he did not rely upon) is dated 14 July 2014. In it Mr Garrett deposes to matters concerning what he alleges to be the surplus of his bankrupt estate, as well as setting out allegations he relies on to impugn the conduct of his trustee in bankruptcy, Mr Macks. As I have noted above, Mr Garrett has an outstanding interlocutory application to join Mr Macks, amongst other people and entities, to this proceeding, which has been adjourned to await the outcome of the respondents’ r 26.01 application. Following discussions between the parties, together with the assistance of a Registrar of this Court at the case management conference held on 9 July 2014, it was agreed that Mr Garrett would select the exhibits from these two affidavits which he considered were necessary for him to respond to the r 26.01 application, and only those exhibits would be reproduced in the Court Book to form the evidence on the r 26.01 application. Accordingly, only some of the exhibits to Mr Garrett’s two affidavits have been received in evidence on this application. Neither party made any objections to the reception of the material in the Court Book into evidence. In addition, Mr Garrett sought to tender a second and updated psychological report from his treating psychologist. A report from 2010 was already in evidence. The respondents did not object to the tender, but submitted as a matter of weight it was unclear how either report could be of any probative value in any of the issues on the r 26.01 application. Given the approach I have taken to the determination of the respondents’ application, it is not necessary for me to make any findings about the matters in the two psychological reports.RELEVANT FACTS It was a difficult task for Mr Garrett to confine the factual matters on which he wished to rely in this application. Given he is self-represented and the respondents seek summary judgment on all his claims, his difficulty is explicable. Mr Garrett was concerned to ensure the Court understood the indisputably complicated factual matrix of events which occurred after the 2000 Deed, and which led him to make the wideranging claims he has made in this proceeding. Understanding the factual background, not only as Mr Garrett would present it, but also more objectively, is made all the more difficult because of the multiplicity of proceedings brought by Mr Garrett in the past, many of which have involved overlapping claims.

Decision

Reasons for decision

Mr Garrett submitted that since he has proceedings on foot to annul his bankruptcy, and maintains his bankruptcy was null and void, any arguments based on his bankruptcy should not be accepted as a basis for summary judgment. He also submits that the entire sale to Make Wine was a “sham”, deliberately designed to overcome his right of first refusal under the 2000 Deed.Summary judgment grounds: Trade mark claims The respondents submit that the applicant’s claims of trade mark infringement have no reasonable prospects of success. That is because three of the four trade marks in issue were expressly assigned to Mildara Blass in the 2000 Deed. The fourth trade mark, which includes a stylised script signature of Mr Garrett and an image of a fingerprint, is a composite mark, and insofar as it uses the stylised script of Mr Garrett’s signature, this was transferred to Mildara Blass in the 2000 Deed by way of a perpetual licence. Mildara Blass (by then, TWEV) then validly sold its rights in the trade marks (including the stylised script licence) to Make Wine. The respondents submit there is a finding by Lander J in Tseng [2008] FCA 1011, which governs this issue. At [60], Lander J states:On 26 July 2000 Mr and Mrs Garrett, and Mr and Mrs Garrett as trustees of The Garrett Family Trust and other parties associated with them, entered into a settlement deed with Mildara and Vinpac International Pty Ltd (the Deed of Settlement). The Deed of Settlement brought to an end the disputes which were raised by the proceedings in Action No 2244 of 1996. Effectively, that Deed gave ownership of all the intellectual property rights owned by Mr and Mrs Garrett and associated entities to Mildara which thereafter was entitled to market and sell wine and other products bearing the Andrew Garrett Trade Mark, the Garrett Trade Mark, the Garrett Family Trade Mark and the Stylised Script Trade Mark in Australia, New Zealand and Japan. They further submit that Mr Garrett had an opportunity to object to the granting of the fourth composite mark, but failed to do so within time. In response Mr Garrett submits his cause of action under s 88 of the Trade Marks Act is not time barred, nor affected by whether he had at the relevant time any “legal interest” in the trade marks. He says he is a person aggrieved for the purposes of s 88, having an interest in the trade marks which is greater than an ordinary member of the public. Section 88 provides:88 Amendment or cancellation—other specified grounds(1) Subject to subsection (2) and section 89, a prescribed court may, on the application of an aggrieved person or the Registrar, order that the Register be rectified by:(a) cancelling the registration of a trade mark; or(b) removing or amending an entry wrongly made or remaining on the Register; or(c) entering any condition or limitation affecting the registration of a trade mark that ought to be entered. (2) An application may be made on any of the following grounds, and on no other grounds:(a) any of the grounds on which the registration of the trade mark could have been opposed under this Act;(b) an amendment of the application for the registration of the trade mark was obtained as a result of fraud, false suggestion or misrepresentation;(c) because of the circumstances applying at the time when the application for rectification is filed, the use of the trade mark is likely to deceive or cause confusion;(e) if the application is in respect of an entry in the Register—the entry was made, or has been previously amended, as a result of fraud, false suggestion or misrepresentation.Summary judgment grounds: Standing

Ratio Decidendi

Legal Principle Established

They rely also on findings made by Layton J in Garrett v Mildara Blass Ltd [2009] SASC 19 at [329], [332]: [...] 32 proceedings in the Supreme Court, four proceedings in the District Court and four proceedings in the Magistrates Court instituted by Mr Garrett, amounted to vexatious proceedings [...]The various grounds upon which I have concluded they were vexatious proceedings include being an abuse of process of the Court, re-litigation of matters decided already by a court, instituting proceedings without reasonable ground or utterly hopeless grounds, numerous attempts by Mr Garrett to find other legal entities by which to take action to agitate his own personal concerns; and also proceedings instituted for the purpose of annoying and harassing named litigants who were often non-parties to the action in which proceedings have been instituted.…In the course of the 21 actions, at least 20 proceedings instituted by Mr Garrett in the actions were dismissed, struck-out or refused. Reasons were published for the majority of these decisions, and within those reasons the proceedings instituted by Mr Garrett are described, inter alia, as “hopelessly misconceived”, “incoherent”, “embarrassing”, “vexatious”, “ostensibly untenable” and as having “no reasonable prospect of success”.CONSIDERATIONSummary judgment grounds: The 2000 Deed In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, the plurality emphasise that s 31A of the Federal Court Act “departs radically” from the earlier provisions permitting summary judgment, which required formulation of “a certain and concluded determination that a proceeding would necessarily fail”: at [53] per Hayne, Crennan, Kiefel and Bell JJ. The respondents in this application do not move under s 31A and no submissions by them were directed to that provision. Accordingly, the Court must proceed on the basis their application is founded only on r 26.01 and the respondents must persuade the Court to the standard set out in Spencer at [53]. A proceeding should not be dismissed under r 26.01 if the Court is required to determine contested issues of fact or engage in significant fact finding, given the evidence is invariably incomplete and untested: Spencer at [21], [24] per French CJ and Gummow J, citing Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at [94]-[95] per Lord Hope of Craighead. In Spencer 241 CLR 118; [2010] HCA 28 at [24], French CJ and Gummow J expressly referred to the need for caution to attend the termination of proceedings summarily. So much is also evident from their Honours’ use of terms such as “incurable” and “unanswerable”. Their Honours referred then to several decisions, including Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46] and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], where the language of “a high degree of certainty” was used. Putting to one side issues of abuse of process and estoppel, it is problematic to apply r 26.01 to Mr Garrett’s claims, in terms of determining whether he has reasonable prospects of successfully prosecuting the proceeding, or part of the proceeding. All of his claims depend heavily on evidence, and evidence of events and transactions a considerable time ago. Some (like his cl 9 arguments) also depend on a construction of a clause in a contract which on its face is ambiguous. Clause 9.2 plainly needs to be rewritten for the respondents’ argument to succeed. Clause 9.2 itself refers to “AMG”. The respondents contend this is a mistake and the parties meant it to refer to the trustees. Mr Garrett contends otherwise. Other clauses, such as cl 9.6, also refer to “AMG” and again the respondents say these are mistakes and should be construed by rewriting them. That is not an exercise lightly undertaken: Pakallus v Cameron (1982) 180 CLR 447 at 452 per Wilson J.