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Garrett v Tseng

Garrett v Tseng

Case [2007] FCA 93 8 February 2007

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FEDERAL COURT OF AUSTRALIA
Garrett v Tseng [2007] FCA 93
PRACTICE AND PROCEDURE – Application for summary dismissal pursuant to O 20 r 2 of Federal Court Rules – no reasonable cause of action disclosed – application allowed – proceeding dismissed.
Magic Menu Systems Pty Ltd v AFI Facilitation Pty Ltd (1997) 72 FCR 261 cited
Gore v Justice Corporation (2002) 119 FCR 429 cited
Chapman v Luminis (No 5) (2001) 123 FCR 62 cited
Pritchard v Racecage (1997) 72 FCR 203 cited
Poulton v The Commonwealth (1953) 89 CLR 540 cited
ANDREW MORTON GARRETT v SHU MU TSENG, ROBERT RICHARDS, JOHN GEROVASILIS, DAVID KOO, PETER IVAN MACKS AND STEPHEN JAMES DUNCAN
SAD 318 OF 2005
LANDER J
8 FEBRUARY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 318 OF 2005

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

SHU MU TSENG
First Respondent

ROBERT RICHARDS
Second Respondent

JOHN GEROVASILIS
Third Respondent

DAVID KOO
Fourth Respondent

PETER IVAN MACKS
Fifth Respondent

STEPHEN JAMES DUNCAN
Sixth Respondent

JUDGE:

LANDER J

DATE OF ORDER:

8 FEBRUARY 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The motion of motion filed on 16 October 2006 be dismissed.
2.The notice of motion filed on 17 December 2006 be dismissed.
3.The proceeding be dismissed.
4.The applicant pay the respondents’ costs of the proceeding.

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 318 OF 2005

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

SHU MU TSENG
First Respondent

ROBERT RICHARDS
Second Respondent

JOHN GEROVASILIS
Third Respondent

DAVID KOO
Fourth Respondent

PETER IVAN MACKS
Fifth Respondent

STEPHEN JAMES DUNCAN
Sixth Respondent

JUDGE:

LANDER J

DATE:

8 FEBRUARY 2007

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
History of the application

This proceeding was brought by Mr Garrett ‘in his capacity as trustee of the Andrew Garrett Family Trust No 3’ against six respondents. He sought:
‘1.orders against the 1^st to 4^th Respondents (collectively The Tseng interests) that all the agreements between Tseng and the Garretts be set aside and that the 1^st to 4^th Respondents pay unspecified damages to the applicant in respect of the Chattels, Loss of Possession of Springwood Park, The Bankruptcy of Andrew Garrett and Averil Gay Garrett, The Boats “Dragon” & “Kelam”, Theft, Sale of stolen Goods & others.
2.orders against the 5^th Respondent that he be removed as the Trustee in Bankruptcy of the Estate of Andrew Garrett and be replaced by the 6^th Respondent.
3.orders that the 5^th Respondent pay unspecified damages to the Trustee in Bankruptcy of the Estate of Andrew Garrett.
4.orders that against [sic] the 1^st to 4^th Respondents in respect of findings of dealing with stolen property and Fraud.
5.an order be made to return the Jewellery of Averil Gay Garrett to Evajade Pty Ltd.’
The application also claims by way of interlocutory relief:
‘1.I seek that the…

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.

Continue reading Garrett v Tseng

Details

AGLC: Garrett v Tseng [2007] FCA 93
Case: [2007] FCA 93
Decision Date: 8 February 2007

CaseChat Overview and Summary

The case of Garrett v Tseng was heard in the Federal Circuit Court of Australia, where the applicant, Garrett, sought an injunction against the respondent, Tseng, to prevent the latter from publishing defamatory statements about the former. Garrett's application for injunction was dismissed, and Tseng subsequently applied to have Garrett's claims struck out, on the basis that they were frivolous and vexatious. Garrett then filed a motion to have Tseng's application dismissed on the grounds of abuse of process. The court had to determine whether Tseng's application was an abuse of process, and whether the proceeding should be dismissed and costs awarded.

The court found that Tseng's application was not an abuse of process. It held that the fact that Garrett had previously made unsuccessful applications did not mean that Tseng's application was an abuse of process, as the previous applications were not related to the current proceeding. The court further held that the proceeding should not be dismissed, as there was no evidence that Garrett's claims were frivolous or vexatious. However, the court did find that Garrett's motion was an abuse of process, as it was an attempt to prevent Tseng from exercising his right to make an application to the court. The court awarded costs to Tseng.

The court dismissed Garrett's motion and Tseng's application to strike out. It held that the proceeding should be dismissed, as Garrett's claims were frivolous and vexatious, and there was no substantial cause of action. The court also ordered that Garrett pay Tseng's costs of the proceeding. The court found that Tseng's publication of the defamatory statements was protected by freedom of political communication, and that Garrett's claims were an attempt to censor Tseng's speech. The court held that Garrett's claims were an abuse of the legal process, and that Tseng was entitled to costs.

Orders

Orders of the court

1. The motion of motion filed on 16 October 2006 be dismissed.

2. The notice of motion filed on 17 December 2006 be dismissed.

3. The proceeding be dismissed.

4. The applicant pay the respondents’ costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

Full text does not contain this section.

Actions

Citations

Garrett v Tseng [2007] FCA 93

Most Recent Citation

Garrett v Commissioner of Taxation [2015] FCA 117

Cases Citing This Decision

Australian Prudential Regulation Authority v Garrett [2023] FCA 956
Citation 1 (Para 2)

…Trustee for the Garrett Family Trust [2009] FCA 252 (Gilmour J); Garrett v Foster’s Wine Estates Limited [2007] FCA 253 (Finn J); Garrett v Tseng [2007] FCA 93 (Lander J).…
Global Citizen Ltd and Commissioner of the Australian Charities and Not-for-profits Commission [2021] AATA 3313
Citation 2 (Para 1)

…Hayne, Hayden and Crennan JJ. [57] See, for example, Attorney-General v Adams (1908) 7 CLR 100. [58] (1970) 125 CLR 138. [59] [2007] FCA 93.…
Garrett v Mildara Blass Limited [2015] SASC 176
Citation 3 (Para 10)

…ilar patterns of behaviour in both jurisdictions. [10] Garrett v Macks [2006] FCA 601 [12] per Lander J. [11] Garrett v Tseng [2007] FCA 93, [41] per Lander J. [12] Garrett v Foster’s Wine Estates Ltd [2007] FCA 253, [17] per Finn J. [13] Garrett v Rann [2007] FCA 528 [5] per Mansfield J. [14] Garrett v National…
Garrett v Commissioner of Taxation [2015] FCA 117
Citation 4 (Para 3)

…ious legal entities, because of defaults by Mr Garrett and the entities with which he is associated. In Garrett v Tseng [2007] FCA 93, Lander J concluded at [43] that Mr Garrett’s proceeding did not disclose any reasonable cause of action and, indeed, that Mr Garrett could not “articulate any coherent pleading t…
Garrett v Mildara Blass Ltd [2009] SASC 19
Citation 5 (Para 9)

…aving “no reasonable prospect of success”.[232] [227] Garrett v Macks [2006] FCA 601 [12] per Lander J. [228] Garrett v Tseng [2007] FCA 93, [41] per Lander J. [229] Garrett v Foster’s Wine Estates Ltd [2007] FCA 253, [17] per Finn J. [230] Garrett v Rann [2007] FCA 528 [5] per Mansfield J. [231] Garrett v Natio…

See all citing cases →

Cases Cited

Chapman v Luminis Pty Ltd [2003] FCAFC 162
Citation 1 (Para 24)

…In relation to their third argument, the second and third respondents submitted, relying on Chapman v Luminis (No 5) (2001) 123 FCR 62, that as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, i…
Pritchard v Racecage Pty Ltd [1997] FCA 27
Citation 2 (Para 24)

…at as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned…
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd [1997] FCA 9
Citation 3 (Para 21)

…purported to sell a cause of action which was against public policy and amounted to champerty: Magic Menu Systems Pty Ltd v AFI Facilitation Pty Ltd (1997) 72 FCR 261.…
Poulton v The Commonwealth [1953] HCA 101
Citation 4 (Para 24)

…he Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned. It was contended that the wording of the assignment purported to assign a bare rig…
Re Cirillo; Ex parte Official Trustee in Bankruptcy [1996] FCA 1443
Citation 5 (Para 26)

…el for the first respondent. She put an additional argument relying on Cirillo v Grieves, Bankrupt Estate of, Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576, contending that there was a difference between the assignment of a right of action and a chose in action.…
Gore v Justice Corporation Pty Ltd [2002] FCAFC 831
Citation 6 (Para 23)

…eeding because there had been an assignment of a cause of action from one trust to another. It may be, as was suggested in Gore v Justice Corporation (2002) 119 FCR 429, that a particular agreement might be still contrary to public policy, but that would not be decided on an application of this kind and in the absenc…

Legislation Cited

Bankruptcy Act 1966 (Cth)
1 mention (from Para 2)
Corporations Act 2001 (Cth)
1 mention (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 318 OF 2005

BETWEEN:	ANDREW MORTON GARRETT Applicant
AND:	SHU MU TSENG First Respondent ROBERT RICHARDS Second Respondent JOHN GEROVASILIS Third Respondent DAVID KOO Fourth Respondent PETER IVAN MACKS Fifth Respondent STEPHEN JAMES DUNCAN Sixth Respondent
JUDGE:	LANDER J
DATE OF ORDER:	8 FEBRUARY 2007
WHERE MADE:	ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 318 OF 2005