FEDERAL COURT OF AUSTRALIA

Garrett v Rann [2007] FCA 528

ANDREW MORTON GARRETT v THE HONOURABLE MICHAEL RANN MP, PREMIER OF THE STATE OF SOUTH AUSTRALIA, THE HONOURABLE PAUL HOLLOWAY MP, MINISTER FOR PLANNING OF THE STATE OF SOUTH AUSTRALIA, CITY OF MITCHAM, COUNCILLORS OF THE CITY OF MITCHAM, JUSTICE BRUCE DE BELLE, CONSERVATION COUNCIL OF SOUTH AUSTRALIA, JASMINE ROSE, HILLS FACE NETWORK AND MARCUS BERESFORD

SAD 15 OF 2007

MANSFIELD J

13 APRIL 2007

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay to the first to fifth respondents their costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This application was instituted on 2 February 2007.  I did not consider that it was in an appropriate form, upon first examining it, so I directed that it not be served prior to the first directions hearing.

2                     On 21 February 2007, I raised with the applicant my concerns about the quality of proceeding.  As a result of that, he was given leave to amend his application by substituting claims that an order be made under O 80 of the Federal Court Rules in respect of “pro bono” legal aid, and that orders be made to provide for pre-action discovery under O 15A of the Rules.  That was a consequence of the applicant indicating that he did not confidently assert a cause of action against any of the respondents at present, and that in essence his application was for pre-action discovery.

3                     He was given leave to file such further affidavits as he may be advised in support of his application, and directed to file in draft form the formal orders which he sought severally against each respondent, by 4 April 2007.  By the same date, he was directed to file a brief outline of his submission identifying separately with respect to each of the respondents the nature of the final relief which he has reasonable cause to believe he may have against that respondent, and the provision of the statute under which this Court has jurisdiction to grant such relief.  The applicant has not complied with those directions and no further documents have been filed.

4                     The only other document which has been filed is an affidavit of the applicant filed at the same time as the application.  It is lengthy, discursive, disjointed, and in large measure incomprehensible.  Although in affidavit form, and supported by various exhibits comprising the “constitution” of various companies, photographs of car racing teams, wine labels, various trust deeds, appointments of trustees, and decisions made by the Environment Resources and Development Court of South Australia and a subsequent appeal to the Full Court of the Supreme Court of South Australia in City of Mitcham v Mol Pty Ltd [2003] SASC 155 (in which the fifth respondent was one member of the Court), those annexures are uninformative.  They do not support the claim for pre-action discovery now sought to be maintained.

5                     The affidavit itself to a large extent mirrors the statement of claim against National Australia Bank Ltd in matter SAD 16 of 2007.  I have given judgment in that matter today:  Garrett v National Australia Bank [2007] FCA 530. I dismissed that application because it discloses no arguable cause of action and the statement of claim is oppressive, embarrassing and vexatious.  I will not repeat what I there said, but the comments there are equally applicable to the contents of this affidavit.

6                     The part of the affidavit addressing the circumstances of the particular respondents is contained in paragraphs 51-53 of the affidavit.

7                     Apart from annexing a copy of the Supreme Court decision to which I have referred, the fifth respondent is asserted to have been biased and prejudiced so that he should have not have sat on that appeal.  There is no foundation in the statement of claim or in the affidavit to support those assertions.  They are inappropriately made in the circumstances.  Nor is there any suggestion that there is a need for pre-action discovery to maintain that claim.  If the appellant had such concern of ostensible bias on the part of the fifth respondent, his appropriate course was to object at the time to that judge sitting on the appeal.  He did not apparently do so.

8                     The claim against the remaining respondents is expressed in the following terms in par 53:

53.       The Honourable Paul Holloway MP & The Honourable Premier Michael Rann MP & Moratorium on Development in the Hills face Zone.

53.1     Sometime after or prior to the handing down of the Decision of a Master in Action 1506 of 2003 to grant possession of the property known as Springwood Park to the Applicant National Australia Bank the premier and the Minister for planning were lobbied by various self interest groups in respect of the property known as Springwood Park

53.2          Mitcham Council, The Hills Face Network, The Conservation Council and others asserted that the property should be acquired by the Government through the funding available through the programme for Metropolitan Open Space (MOS).

53.3          In order to be successful with a bid the Minister declared a Moratorium on development in the Hills Face Zone.

53.4          This was specifically engineered to reduce the value of the property from its pre moratorium value.

53.5          Previous proposals put to successive governments included;

53.5.1    $250million Development with 30 allotments 6 Star boutique Underground Hotel incorporating Carrick hill put up by me to the Olsen Government

53.5.2    300 allotment development put up to the prior labour governments by the prior owners.

53.6          The controlling minds of Mitcham City Council are the Councillors who have been in office during the period 1996 until today’s date.

53.7          The Controlling minds of the Conservation council during this period have included

53.7.1    Marcus Beresford

53.7.2    Jasmine Rose.

9                     Of course, I do not know if those factual allegations are correct.  The only allegation which might conceivably give rise to an unidentified cause of action is that contained in par 53.4.  That is not an allegation of material facts.  Nor is there any foundation for the conclusion it asserts set out.  Nor is there any basis upon which this Court presently is shown to have jurisdiction to review the asserted decision of the second respondent.  Nor is there any allegation of any conduct on the part of the first respondent.  Nor is there any suggestion of any impropriety on the part of any of the other respondents, other than the second respondent.  No cause of action against any of the respondents on a putative basis has been identified and no basis at all, far less any reasonable basis, for a cause of action is apparent to me.

10                  Order 15A r 6 gives the Court power to order pre-action discovery from a prospective respondent on three conditions.  Firstly there must be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; secondly, after making all reasonable inquiries, the applicant must show that there is not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and thirdly, there must be reasonable cause to believe that the person has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief, and that inspection of the document by the applicant would assist in making the decision to commence a proceeding in the Court.

11                  The material does not support any of those pre-requisites to the exercise of the discretion to make an order for pre-action discovery.  There is no reasonable cause to believe that the applicant has any cause of action or a right to obtain relief in this Court from any of the respondents.  He has not shown that he has made any inquiries, and far from reasonable inquiries, to ascertain whether he has such a cause of action and cannot presently decide whether to do so.  There is no reasonable cause to believe that any of the respondents have or have had any documents relating to the question of whether the applicant has the right to obtain relief by a proceeding in this Court.

12                  I do not propose to give any direction to the Registrar under Order 80 to endeavour to secure pro bono legal assistance for the applicant.  There is no reason to do so.  The proceedings are entirely misconceived, for the reasons given, and the supporting affidavit is gravely flawed.  If the applicant properly addresses the matters in O 15A r 6, and there is an apparent basis to invoke the Court’s jurisdiction, it may be possible for him to make a fresh application under O 15A for pre-action discovery, and at that time he may invite the Court to make an order under O 80.  Of course, that is not to invite the applicant to so proceed.  For the reasons given, I have doubts that he has any claim against the respondents at all and that any such claim is within the jurisdiction of this Court.

13                  The application must be dismissed.

14                  As the first to fifth respondents have appeared, I order that the applicant pay to those respondents their costs of the application.

Associate:

Dated:         13 April 2007