GARRETT & ANOR v MILDARA BLASS LTD & ORS; ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v GARRETT
[2009] SASC 19
Judgment of The Honourable Justice Layton
30 January 2009
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT
Three applications in two actions heard concurrently - evidence in one application was evidence in all applications.
First application by the second plaintiff to set aside and re-open a consent judgment - whether second plaintiff had standing to bring the application - whether an alleged breach of the Deed of Settlement which is linked to the entering of a consent judgment could give rise to setting aside the consent judgment.
Held: second plaintiff had no standing to bring application - there was no basis upon which the deed of settlement was rendered void or voidable - it was out of time and not all parties were represented - there was no basis for an application of Rule 84.12 of the Supreme Court Rules 1987 - the justice of the case did not require setting aside the order - application was instituted vexatiously - application dismissed.
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN LEGAL PROCEEDINGS
Second application by first defendant for a declaration pursuant to s 39 of the Supreme Court Act 1935 that Andrew Morton Garrett has persistently instituted vexatious proceedings - orders sought that the litigant be prohibited from instituting proceedings against first defendant and related entities without the leave of the Court and a permanent stay of the action - whether previous declaration that the litigant had persistently instituted vexatious proceedings against National Australia Bank amounted to a declaration in rem so that no further declaration was necessary and the Court would only be required to extend or broaden the scope of the orders.
Held: previous declaration and orders were orders made in personam - a s 39 declaration still required - however previous declaration and orders are relevant in a later application and to the exercise of discretion - orders granted.
Third application by Attorney-General for a declaration pursuant to s 39 of the Supreme Court Act 1935 that Andrew Morton Garrett has persistently instituted vexatious proceedings - orders sought that the litigant be prohibited from instituting proceedings in any court of South Australia without the leave of the Court - whether litigant has "instituted proceedings" for the purposes of s 39 when they have been rejected for filing by the Court - whether the filing of interlocutory proceedings in an action may be regarded as "instituting proceedings" for the purposes of s 39 - whether a defendant can be a vexatious litigant even if proceedings not instituted in their own name.
Held: given the broad context and purpose of s 39, proceedings have been instituted if they have been lodged for the purpose of filing but have been rejected pursuant to Rule 53…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Garrett v Mildara Blass Ltd [2009] SASC 19
Case
[2009] SASC 19
Decision Date
CaseChat Overview and Summary
In the case of Garrett v Mildara Blass Ltd, the primary issue before the court was whether a declaration made by Anderson J, under section 39 of the Supreme Court Act 1935 (SA), that Mr. Garrett had persistently instituted vexatious proceedings, remained in force and effect despite the passing of time and changes in the circumstances. Mr. Livesey, representing Mr. Garrett, argued that such declarations are akin to judgments in rem, binding the whole world and not merely the parties involved. This argument was based on the reasoning of Hope JA in P E Bakers Pty Ltd & Ors v Yehuda & Anor, where it was held that judgments in rem, which determine the status of a person or thing in relation to the world generally, have a broader effect than judgments in personam, which only bind the parties to the proceedings.
The court was required to determine the legal nature of the declaration made by Anderson J and its ongoing applicability. This involved examining the precedent set by Hope JA and the broader legal principles concerning judgments in rem and in personam. The court had to consider whether the declaration and subsequent orders made under section 39 were of a public nature, as suggested by the requirement for publication in the Government Gazette. Mr. Livesey contended that the declaration and orders were still in force, as they were not limited to the specific proceedings in which they were made but had a wider applicability.
The court, however, found that the declaration and orders made by Anderson J did not retain their force and effect over time, even if they were initially considered judgments in rem. The court distinguished between the binding effect of such declarations and the specific circumstances under which they were made. The court emphasised that the declaration was contingent on the persistence of vexatious proceedings at the time it was made. As the circumstances had changed, and no ongoing vexatious proceedings were present, the declaration and orders were no longer applicable. The court concluded that there was a need to again make a declaration regarding Mr. Garrett’s conduct in relation to the proceedings brought by FWE and the Attorney-General, as the original declaration was not sufficient to address the current situation.
The court's decision effectively nullified the continued applicability of the previous declaration and orders, requiring a fresh assessment of Mr. Garrett's conduct in the context of the new proceedings. This decision underscored the importance of considering the temporal and circumstantial context of declarations made under section 39 of the Supreme Court Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In support of his argument that the declaration made by Anderson J was a declaration in rem, Mr Livesey relied on Hope JA’s reasoning in P E Bakers Pty Ltd & Ors v Yehuda & Anor.[3] His Honour stated:[4]For relevant purposes judicial decisions are commonly divided into judgments in rem and judgments in personam. Estoppels resulting from judgments in personam bind only the parties to the proceedings and their privies; they do not bind other parties who may re-litigate the same issues in other proceedings. On the other hand estoppels arising from judgments in rem bind the whole world, although the estoppels do not extend to every issue decided in the proceedings. In Spencer-Bower and Turner, Res Judicata, 2nd ed (1969) at 213, the following statement is made as to the nature of a judgment in rem: “A judicial decision in rem is one which declares, defines, or otherwise determines the status of a person, or of a thing, that is to say, the jural relation of the person, or thing, to the world generally, and therefore is conclusive for, or against, everybody, as distinct from those decisions which purport to determine the jural relation of the parties only to one another, and their personal rights and equities inter se, and which, therefore, are commonly termed decisions in personam.” There are many examples of judgments in rem in the books. Sometimes the judgment creates or changes the status or creates a new right in respect of the person or thing. Thus, assuming jurisdiction, the judgment of a divorce court dissolving a marriage: Bater v Bater [1906] P 209, a decision of a licensing court to grant a licence to sell liquor in respect of specified premises: Washington H Soul Pattinson & Co Ltd v Ogilvy (1954) 55 SR (NSW) 143; 72 WN 87, and a judgment of the Admiralty Court establishing a lien: Ballantyne v Mackinnon [1896] 2 QB 455, are examples of judgments in rem which create or sometimes, on one view, destroy a status. However the concept is not limited to judgments of this kind; declaratory judgments can be judgments in rem. Thus a decision of justices, having power so to do, affirming the existence of a public road: Wakefield Corporation v Cooke [1903] 1 KB 417; affirmed [1904] AC 31, and a decree of nullity by a divorce court; Salvesen (or Von Lorang) v Austrian Property Administrator [1927] AC 641, are essentially declaratory decisions, but nonetheless are and have the effect of judgments in rem. [emphasis added][3] (1988) 15 NSWLR 437.[4] P E Bakers Pty Ltd & Ors v Yehuda & Anor (1988) 15 NSWLR 437, 442. Mr Livesey submitted that following the reasoning of Hope JA, declarations such as those made pursuant to s 39 of the Act are orders in rem, which bind the whole world. It is a declaration to the world generally that a person has persistently instituted proceedings and this status applies from the time of the declaration and into the future. Further, orders made under s 39 are required to be published in the Government Gazette,[5] which emphasises the public nature of the declaration and subsequent orders. On Mr Livesey’s submission, the declaration and orders made by Anderson J were therefore still in force.[6] There was no need to again make a declaration that Mr Garrett had persistently instituted vexatious proceedings either in relation to the application made by FWE or by the Attorney-General. [5] Supreme Court Act1935 (SA) s 39(4).[6] T 8.