FEDERAL COURT OF AUSTRALIA
Garrett v Make Wine Pty Ltd [2014] FCA 1258
Continue reading Garrett v Make Wine Pty Ltd
Sign in free to access the full text
- AGLC
- Garrett v Make Wine Pty Ltd [2014] FCA 1258
- Case
- [2014] FCA 1258
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.