FEDERAL COURT OF AUSTRALIA

Garrett v National Australia Bank Limited [2009] FCA 191

ANDREW MORTON GARRETT v NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937, SCOTT EVANS, DAVID PROUDMAN, MARK LIVESEY QC, PHILLIP MCNAMARA QC and JOHNSON WINTER & SLATTERY

SAD 185 of 2007

LANDER J

20 FEBRUARY 2009

ADELAIDE (BY TELEPHONE CONFERENCE)

THE COURT ORDERS THAT:

1.                  The statement of claim filed on 31 October 2008 be struck out.

2.                  The proceeding as it relates to the second to sixth respondents be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 21 December 2007 the applicant lodged an originating application and a statement of claim for filing.  The Registrar sought a direction pursuant to O 46 r 7 as to whether the documents should be accepted.  On 21 December 2007 Finn J directed that the documents be accepted but not served on the respondents.  He fixed a directions hearing for 21 January 2008 but the date was vacated and no new date fixed.

2                     The proceeding remained unresolved until it was placed in my docket and I fixed a directions hearing for 10 October 2008.  When the matter came on before me on 10 October 2008, I advised Mr Garrett that the statement of claim contained a number of irrelevancies and a number of causes of action for which this Court did not have jurisdiction.  Mr Garrett said that the principal cause of action was the breach by the National Australia Bank of a number of finance contracts between the National Australia Bank and himself, and parties associated with himself, and further misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (the TPA).

3                     On that date I made an order that Mr Garrett file a statement of claim setting out precisely, simply and clearly, the causes of action upon which he relied.  I indicated at that time that if he were able to do so I would direct that the statement of claim be served on the parties and the proceeding proceed.  If, on the other hand, he was not able to file a statement of claim in the terms which I directed, I would hear Mr Garrett as to why the statement of claim should not be struck out.

4                     Mr Garrett filed a further statement of claim on 31 October 2008 which is the statement of claim which is today under consideration.  In the meantime, he filed an application for an order under O 80 of the Federal Court Rules that a legal practitioner be appointed to assist him in the presentation of his argument in relation to the statement of claim.

5                     On 7 November 2008 I indicated that, in my opinion, Mr Garrett did not have standing to bring an application for an order under O 80 of the Federal Court Rules.

6                     I declined to make an order appointing a legal practitioner or give any direction that a legal practitioner appears on behalf of Mr Garrett.  The reason I did so is that O 80 does not entitle or empower a litigant to apply to the Court for an order referring the litigant to the Registrar for referral to a legal practitioner.  The purpose of O 80 r 1(2) is “to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance”.

7                     The scheme is not meant to be a substitute for legal aid: O 80 r 1(3).  More particularly, as O 80 r 1(5) shows, the order does not oblige the Court to make a referral or even to consider a litigant’s case for a referral under the order.  The purpose of O 80 is, where it is in the interests of the administration of justice, to refer a litigant to the Registrar for referral to a legal practitioner and where it will be of assistance to the Court.  If a referral is made in accordance with the provisions of O 80, it would be an administrative decision of the Court or a judge and not the exercise of judicial power.  Insofar as there are judgments of this Court which might suggest a party has a right to apply for an order of this Court that a referral be made to a legal practitioner, I disagree with those judgments.  In my opinion, any referral made under O 80 is not the exercise of judicial power but an administrative decision of the particular judge.

8                     The consideration of the statement of claim which was filed on 31 October 2008 was adjourned from time to time because Mr Garrett, in the meantime, sought legal assistance from the Attorney-General in relation to this proceeding.  The Attorney-General has power under the TPA to provide legal assistance to parties in certain circumstances.  The type of application that Mr Garrett has brought is not a proceeding of the kind for which the Attorney-General is empowered to provide legal assistance.  The Attorney-General, in due course, refused to do so.  I understand Mr Garrett either has or intends to challenge the Attorney-General’s administrative decision in the Administrative Appeals Tribunal and that will be a matter for that Tribunal.

9                     This proceeding has been brought by Mr Andrew Morton Garrett.  The originating proceeding does not suggest that the proceeding is brought in a representative capacity: O 6 r 14.  Paragraph 25 of the statement of claim, however, says that the claim is brought by Mr Garrett in 17 various capacities.  He claims to bring the proceeding as the trustee of the Andrew Garrett Family Trust, the joint trustee of a number of other trusts, the shareholder of a number of companies, some of which are in liquidation, and the unit holder of a number of unit trusts.

10                  Clearly, he has no right to bring any claim on behalf of, as a shareholder, any company in liquidation.  Nor does he have any right to bring any proceeding as a shareholder of a company not in liquidation, because no order has been made under the Corporations Act 2001 (Cth) authorising such a proceeding.  Moreover, he has no standing to bring any application as a unit holder of any of the unit trusts.  He also has no standing to bring any application on his own behalf because, on 24 September 2004, a sequestration order was made against his estate.

11                  Therefore, if he has any standing at all to bring any part of this proceeding, it can only be as a trustee in his own right of any particular trust.

12                  The proceeding is brought against the National Australia Bank, four legal practitioners and a firm of legal practitioners.  Two of the legal practitioners are senior counsel, and the other two are solicitors who were employed at the relevant time by the respondent firm of solicitors.

13                  It is claimed that the legal practitioners are the agents of the National Australia Bank and the agents of each other.  It is claimed that the firm of solicitors is an agent for the National Australia Bank and the employer of the solicitors and senior counsel.  Clearly, those claims are not correct.  No firm of solicitors employs senior counsel.  That, however, is only a minor point compared with the real defect in the statement of claim insofar as it is brought against senior counsel and the solicitors.

14                  The statement of claim claims relief against the lawyers generally under the heading of “Breaches” in between pages 116 to 125.  It claims that the various breaches are breaches of the Criminal Law Consolidation Act 1935 (SA), State offences that have a Commonwealth aspect and fall within the application of the Crimes Act 1914 (Cth), and offences under the Criminal Code.  I have pointed out to Mr Garrett on a number of occasions that this Court does not have any criminal jurisdiction, although it does have a very limited jurisdiction to hear summary matters under particular Acts.

15                  Mr Garrett said this Court had jurisdiction because of the provisions of s 19 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).  That suggestion, however, must be rejected.  That section of the FCA Act provides that this Court has such original jurisdiction as is vested in it by laws made by the Parliament.  The Commonwealth Parliament has not made laws vesting any criminal jurisdiction in this Court.  It has, on the contrary, under the Judiciary Act 1903 (Cth), vested the criminal jurisdiction of the Commonwealth in the various State courts.

16                  For those reasons and insofar as this statement of claim as against the lawyers purports to identify them as agents of the National Australia Bank, and as susceptible to criminal sanctions, the statement of claim must be struck out and the proceeding against the second to sixth respondents must also be struck out.  That leaves any proceeding that Mr Garrett might have against any party as limited to any proceeding which he brings as a trustee of a trust against the National Australia Bank.  The statement of claim, therefore, contains a number of irrelevancies relating to parties for whom Mr Garrett has no power to bring a proceeding and relating to transactions which do not concern Mr Garrett in his sole capacity as a trustee of any trust.

17                  For those reasons, the statement of claim must be struck out.  There will be an order therefore that the statement of claim filed on 31 October 2008 is struck out.  The proceeding against the second to sixth respondents is dismissed.

Associate:

Dated:         11 March 2009