Garrett v Mildara Blass Limited

Case [2015] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Civil)

GARRETT v MILDARA BLASS LIMITED

[2015] SASC 176

Judgment of The Honourable Justice Peek

6 November 2015

BANKRUPTCY - PROCEDURE AND EVIDENCE - PARTIES

Andrew Garrett, an undischarged bankrupt, purported to bring an interlocutory application in Supreme Court Action 2244 of 1996 for 14 specified orders, including to re-open the application made before Layton J in 2007 to re-open and set aside the consent judgment entered in that action following settlement in 2000.

Section 60(2) of the Bankruptcy Act 1966 (Cth) provides that an action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. Section 60(4)(a) provides an exception to this for an action in respect of any personal injury or wrong done to the bankrupt.

Whether Action 2244 of 1996 is stayed by virtue of s 60(2), Bankruptcy Act and whether Mr Garrett is entitled to bring any interlocutory application in that action. Whether the exception in s 60(4)(a) applies.

Held (dismissing the application):

1. Section 60(4)(a) of the Bankruptcy Act does not apply to this action.

2. Action 2244 of 1996 is stayed by virtue of s 60(2) of the Bankruptcy Act and accordingly Mr Garrett is not entitled to bring any interlocutory application in that action.

Bankruptcy Act 1966 (Cth) s 60(2); s 60(3); s 60(4)(a), referred to.
Garrett & Anor v Mildara Blass Ltd & Ors; Attorney-General for the State of South Australia v Garrett [2009] SASC 19; Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd & Ors [2006] SASC 381; Re Lofthouse (2001) 107 FCR 151, considered.

GARRETT v MILDARA BLASS LIMITED
[2015] SASC 176

Application to a single Judge: Civil

PEEK J.

  1. This application purports to be an interlocutory application brought by Mr Andrew Morton Garrett (Mr Garrett) in Supreme Court Action 2244 of 1996. He applies for some 14 specified orders to be made in that action. Mr Garrett asserted that he originally commenced Action 2244 of 1996 in both his personal capacity and also as a trustee for the Garrett Family Trust and that he sought to appear in both capacities before me.

    Application for recusal

  2. Mr Garrett applied for my recusal from continuing to hear this application. I consider that there is no reason for me to do so and I decline to do so.

    The background facts

  3. In a judgment of this Court entitled Garrett & Anor v Mildara Blass Ltd & Ors;  Attorney-General for the State of South Australia v Garrett,[1] Layton J dealt with two actions which were heard concurrently, namely Action 2244 of 1996 and Action 1342 of 2007 which was instituted by the Attorney-General for the State of South Australia seeking inter alia, a declaration that Mr Garrett has persistently issued vexatious proceedings, and an order that he be prohibited from instituting…

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Garrett v Mildara Blass Limited [2015] SASC 176
Case
[2015] SASC 176
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CaseChat Overview and Summary

In the case of Garrett v Mildara Blass Limited, the dispute involved Andrew Garrett, an undischarged bankrupt, who sought to bring an interlocutory application in Supreme Court Action 2244 of 1996. The application included 14 specified orders, among which was a request to re-open a previous application made before Layton J in 2007, seeking to re-open and set aside a consent judgment entered in the same action following a settlement in 2000. Mr. Garrett also sought to challenge the decision of the judge to recuse themselves from hearing the application. The central legal issues in this case involved whether Mr. Garrett had the standing to bring the application and whether the application constituted a vexatious proceeding under the relevant statutes.

The court examined the background of the case, noting that it involved multiple actions and applications, including one instituted by the Attorney-General for the State of South Australia, seeking a declaration that Mr. Garrett had persistently issued vexatious proceedings and a prohibition against him instituting any proceedings without court permission. The court further analysed Mr. Garrett’s numerous attempts to re-litigate settled matters and his conduct in various proceedings, determining that his actions amounted to vexatious litigation. The court found that Mr. Garrett's application to re-open the action was without merit, constituted a vexatious proceeding, and lacked reasonable grounds. Consequently, the court rejected the application and denied Mr. Garrett’s request for the judge to recuse themselves from hearing the matter.

In summary, the court held that Mr. Garrett did not have standing to bring the interlocutory application and that the application itself was vexatious. The court concluded that there were no reasonably arguable grounds for re-opening the previous action and denied the application. The decision reinforced the principles surrounding vexatious litigation and the court's powers to manage such proceedings effectively.

Orders

Orders of the court

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Background

Background to the litigation

Mr Garrett applied for my recusal from continuing to hear this application. I consider that there is no reason for me to do so and I decline to do so. The background facts In a judgment of this Court entitled Garrett & Anor v Mildara Blass Ltd & Ors; Attorney-General for the State of South Australia v Garrett,[1] Layton J dealt with two actions which were heard concurrently, namely Action 2244 of 1996 and Action 1342 of 2007 which was instituted by the Attorney-General for the State of South Australia seeking inter alia, a declaration that Mr Garrett has persistently issued vexatious proceedings, and an order that he be prohibited from instituting any proceedings in any court without permission of the Court. Her Honour outlined the status of the matter before her thus:[1] [2009] SASC 19 ('Judgment').[1] There are three applications before me. The first is a Notice for Specific Directions filed on 3 May 2007 by Andrew Morton Garrett in Action Number SCCIV-96-2244 (“Action 2244 of 1996”). Mr Garrett seeks, inter alia, to re-open and set aside the judgment entered in that action.[2] The second is an application which was filed on 27 June 2007 by the first defendant, Mildara Blass Limited (“Mildara Blass”), now known as Foster’s Wine Estates Ltd (“FWE”), in Action 2244 of 1996. The Notice for Specific Directions seeks orders, pursuant to s 39 of the Supreme Court Act 1935 (SA) (“the Act”), that Mr Garrett be declared a vexatious litigant, that he be prohibited from instituting any proceedings with respect to FWE and related entities without the leave of the Court, and a permanent stay of the proceedings issued by Mr Garrett in Action 2244 of 1996.[3] The third is an application filed on 10 October 2007 in Action Number SCCIV-07-1342 (“Action 1342 of 2007”), instituted by the Attorney-General for the State of South Australia against Mr Garrett pursuant to s 39 of the Act. This application seeks, inter alia, a declaration that Mr Garrett has persistently issued vexatious proceedings, and an order that he be prohibited from instituting any proceedings in any court without permission of the Court. [4] On 16 November 2007, I made an order that the applications in Action 2244 of 1996 be listed for hearing concurrently with Action 1342 of 2007. I also made an order that the applications should be heard both as to evidence and submissions, in the following order: first, the Attorney-General’s application in Action 1342 of 2007; second, the application by FWE in Action 2244 of 1996; and, lastly, Mr Garrett’s application to re-open in Action 2244 of 1996. I also ordered that, subject to relevance, the evidence adduced and submissions made in Action 1342 of 2007 be treated as evidence and submissions in the applications by the first defendant and second plaintiff in Action 2244 of 1996, and vice versa.[5] At the hearing, Mr Livesey QC, counsel for FWE, identified and made submissions with respect to two preliminary matters, namely:• the effect of the declaration made by Anderson J on 17 May 2007 that Mr Garrett had persistently instituted vexatious proceedings as defined by s 39 of the Act; and• Mr Garrett’s standing to take out the application in Action 2244 of 1996.[6] I will deal with these preliminary issues before moving on to the substantive matters which I will then deal with in the following order:• the application made by Mr Garrett to re-open Action 2244 of 1996;• the application made by the Attorney-General pursuant to s 39 of the Act;• the application made by FWE pursuant to s 39 of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
Layton J then stated “Although the result of my earlier findings means that Mr Garrett has no standing as the sole trustee of the GFT to seek to re-open this action, I will nonetheless deal with his application on the merits.” Her Honour proceeded to do so over the course of many paragraphs and concluded thus:Conclusion on Mr Garrett’s Application to re-open[105] Considering the number of years that have elapsed since the matter settled, together with the entirely flawed nature of the application instituted by Mr Garrett to re-open this proceeding, in my view, there is no reasonably arguable basis for the application brought by Mr Garrett. It is a vexatious proceeding instituted by him asserting that a wrong has been done without in any way being able to substantiate his arguments. Moreover, Mr Garrett’s attempt to put this argument on behalf of a trust suggests to me that he is using whatever means he can, in whatever capacity he can, to devise ways to try to establish standing to continue to litigate against FWE.[106] The application to re-open was filed on 3 May 2007. It came hot on the heels of a judgment delivered by Finn J on 2 March 2007 in Action Number SAD 12/2007, which Federal Court action in turn had been instituted by Mr Garrett on 24 January 2007.[107] In the Federal Court proceedings in Garrett v Foster’s Wines Estates Ltd,[7] Mr Garrett, purporting to act in a number of different capacities, sought to set aside the Asset Sale Agreement between the Wine Company Pty Ltd, Mildara Blass and Suntory Australia Pty Ltd. The application also sought an order that FWE pay to Andrew Morton Garrettâ in his capacity as Trustee of the AGFT No 3 the monies that would have been due under the Garrett Family Licence. The Asset Sale Agreement lay at the heart of the circumstances giving rise to the Deed of Settlement.[108] In the course of his reasons, Finn J referred to the Deed of Settlement entered into between FWE and other parties on 26 July 2000. His Honour noted that there was significant reference to this Deed of Settlement in the Statement of Claim, but indicated that Mr Garrett had accepted during the course of the hearings that the Deed of Settlement was not in issue in the proceedings before him.[8] Nonetheless, Finn J noted that the documentation relied on by Mr Garrett with regard to the application sought “impermissibly, but irrelevantly for present purposes, to attack collaterally the leave given in the Supreme Court of Victoria.”[9][109] This application was therefore yet another contrivance by Mr Garrett to re‑agitate similar related matters in the Supreme Court to those which had failed in the Federal Court. This is yet another reason for being satisfied that this application constitutes the institution of a vexatious proceeding by Mr Garrett.[7] [2007] FCA 253.[8] Garrett v Foster’s Wine Estates Limited [2007] FCA 253, [19].[9] Ibid. Layton J later dealt with the application of the Attorney General, again over many paragraphs. Her Honour referred to many actions and multiple applications in those actions which her Honour found to be instituted vexatiously. Her Honour referred to the arguments of Mr Garrett and concluded:[325] In respect of these arguments, I reject them. It is not correct for Mr Garrett to assert that he has only instituted one action in his entire life, being Action 2244 of 1996. The Attorney-General’s application alone indicates that Mr Garrett was the instigator of Actions 127 of 2004, 78 of 2005, 145 of 2005, 257 of 2005, 422 of 2005, 423 of 2005, 1443 of 2005, 590 of 2006, 7132 of 2006, 7624 of 2006, 7625 of 2006 and 780 of 2007. This is quite apart from the numerous proceedings issued by Mr Garrett in which he has sought unconnected substantive relief within actions commenced by others, in order to achieve the same end as if it had been an originating action by him, without the need for the payment of the court fees associated with an originating action.… [328] I have also read his 70 page written outline of argument, which canvasses a range of matters, including alleged unacceptable conduct of members of the judiciary; a failure of the Court to “investigate”; alleged conduct against legal practitioners, accusing them of manipulating and swearing false testimony; alleged misrepresentation of arguments by counsel; various submissions concerned with company loans, Springwood Park and matters related to bill facilities. None of the matters contained in that document have persuaded me that the conclusions I have reached on the individual proceedings are in error.[329] As a result of my findings, I have concluded that 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 within the meaning of s 39 of the Act. The period of time over which these proceedings were instituted was from 20 August 2004 to 19 December 2007. 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 my view, these matters alone would have been sufficient for me to conclude that Mr Garrett has persistently instituted vexatious proceedings within the meaning of s 39. This conclusion is fortified when seen in the context of other proceedings issued by him in the Federal Court.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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