FEDERAL COURT OF AUSTRALIA

Garrett, as Trustee for the Garrett Family Trust [2009] FCA 252

PRACTICE AND PROCEDURE – abuse of process – Federal Court Rules O 20 r5(1)(b) and (2) – attempt to re-litigate issues already determined in earlier judgment of the Court – application dismissed.

COURTS AND JUDGES – jurisdiction – declaration in nature of advisory opinion sought by trustee as to construction, terms and conditions of asserted Trust – not a federal matter – no jurisdiction.  

Trade Practices Act 1974 (Cth), ss 52 and 53

Federal Court Act 1976 (Cth), s 21(1)

Federal Court Rules (1976) Cth, O 4 r 1, O 20 r 5(1)(b) and (2)  

Trustees Act 1962 (WA), s 92 

Universal Holidays Pty Ltd v Tseng [2008] FCA 1011 referred to

Garrett v Macks [2008] FCA 1419 referred to

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

Forster v Jododex Australia Aust Pty Ltd (1972) 127 CLR 421 cited

Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 cited

Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 cited

Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 cited

Williams v Hunt [1905] 1 KB 512 cited   

ANDREW MORTON GARRETT IN HIS CAPACITY AS TRUSTEE OF THE GARRETT FAMILY TRUST

WAD 204 of 2008

GILMOUR J

23 MARCH 2009

PERTH

THE COURT ORDERS THAT:

1.                  The application be and is 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                     Mr Andrew Garrett has filed a Form 5 application under Order 4 rule 1 of the Federal Court Rules (1976) Cth.  It bears to be an application for declaratory relief under s 21(1) of the Federal Court Act 1976 (Cth) and the Trade Practices Act 1974 (Cth) ss 52 and 53.  It is unnecessary to set out in full the declarations sought.  The first seven declarations concern primarily the so-called Garrett Family Trust.  The declarations sought under paras 8 and 9 and which refer to the Andrew Garrett Family Trust No 2 are that:

(a)        The AGFT 2 was established by a Declaration of Trust dated 5 July 2003; and

(b)        The terms and conditions of Settlement of AGFT 2 on 5 July 2003 are set out in the Deed of Settlement dated 26 August 2003.

2                     Following a directions hearing, I adjourned the application for hearing and put Mr Garrett on notice that his application might be dismissed as an abuse of process and otherwise incompetent.  Mr Garrett availed himself of the opportunity to then file lengthy written submissions.

3                     In Universal Holidays Pty Ltd v Tseng [2008] FCA 1011, Lander J dismissed an application by Mr Garrett to be joined in the cross-claim in the proceeding as the sole trustee of the Garrett Family Trust.  The sole issue upon that application was whether in fact the Garrett Family Trust, of which Mr Garrett claimed to be a trustee, had ever existed.  After a detailed consideration of the evidence Lander J concluded relevantly that there is not, and never has been, a separate entity called the Garrett Family Trust of which Mr Garrett was one of the trustees: [121].  His Honour held that the expression “the Garrett Family Trust” when used in certain “transactional documents” was a reference to the Andrew Garrett Family Trust which was then the only relevant trust in existence.  The application was accordingly dismissed. 

4                     Mr Garrett sought leave to appeal against the orders of Lander J dismissing his application.  That application was refused by Lander J on 8 September 2008.  In dismissing the application for leave Lander J observed that Mr Garrett was in effect seeking to re-litigate before the Full Court on different terms and on different evidence than the application which has previously been before him: Garrett v Macks [2008] FCA 1419 at [26]. 

5                     In a facsimile addressed to my associate dated 31 October 2008 and transmitted on that day, Mr Garrett made, in effect, the following submissions: 

I also wish to clarify my submissions of this morning in that while the orders sought in this action are related to the matter in the South Australian Registry, the orders sought go beyond that judgment given by the Honourable Justice Lander and relate to the equitable interests of each Trust in bringing an action under sections 52, 53, 51AA, 51AC of the Trade Practices Act (1974) and section 88 of the Trademarks Act (1995) against Fosters Wine Estates which I foreshadowed.

The only two parties to the foreshadowed proceedings will be me in my Trustee capacity and Fosters Wine Estates Limited I wish to have clarity by declaration prior to the commencement of those proceedings. 

6                     Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.  The person seeking relief must have a ‘real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties.  The person seeking relief must have a “real interest”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. 

7                     A case is not “real”, for this purpose, when the issue to be determined is divorced from the facts to which it relates.  A general declaration “in air”, which is unrelated to specific facts, may not resolve the dispute between the parties: Martin v Taylor [2000] FCA 1002.  Nor is the case “real” if by granting a declaration the Court will be acting in an advisory way and will not be quelling an existing controversy or establishing any immediate right, duty or liability between the parties: Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394.   

8                     The person seeking the declaration must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [8]. 

9                     Mr Garrett’s application is supported by an affidavit sworn by him on 4 December 2008.  It is expressed in paragraph 1 to be an affidavit to clarify the interest under which he has brought this application.  He has exhibited to the affidavit correspondence dated 30 November 2008 from him, in his several asserted capacities including as trustee of the Andrew Garrett Family Trust No 2, to Mr Martin Hudson, Chief Legal Officer and Company Secretary of Fosters Group Ltd in Southbank, Victoria.  It refers to action SCCIV-2244-1996 which, it would appear, is an action brought by Mr Garrett in his personal capacity and Mr Garrett together with his wife, Averil Gay Garrett, as trustees of the Garrett Family Trust against Mildara Blass Limited, first defendant; Tatachilla Winery Pty Limited, second defendant; and the Registrar of Trade Marks, third defendant.  It includes a counterclaim by Mildara Blass Limited.  The correspondence begins:

As you know I applied to re-open that action with a view to setting aside the Mildara Blass Deed of Settlement dated 26^th July 2000 as well as the previous existing Heads of Agreement dated 7^th June 2000 and the Garrett Family License dated 24^th March 1994.  Her Honour Justice Layton has reserved her judgment. 

10                  There then follows a claim, in terms, for:

(a)                damages and loss allegedly suffered by all the Garrett related entities as a function of underpayments made to, relevantly, the Andrew Garrett Family Trust No 2 amongst others;

(b)               damages suffered by all Garrett related entities as a consequence of impecuniosity caused by the Interpleader action commenced by Fosters Group Ltd in the Victorian Supreme Court in July 2005;

(c)                damages and loss suffered by all Garrett related entities in SCCIV-127-2004, SCCIV-1767-2003 and Ors;

(d)               projected gross margin earnings as at the acquisition dates of both the Garrett Family License (equivalent to the Wolf Blass Brand pursuant to the best endeavours clause) and the Andrew Garrett Brand ($5 mill per annum plus growth) for the last 12 years with respect to the Andrew Garrett Brand and 14 years with respect to the Garrett Family License;

(e)                future sustainable gross margin earnings plus relaunch costs; globally; and

(f)                 costs.

11                  There then follows reference to unpaid GST on certain payments; a claim for all of the monies held by this Court in respect of the proceeding in the South Australian Registry, SAD5 of 2006, as well as a claim against Fosters Wine Estates Ltd in respect of all monies set out in a spreadsheet attached to the correspondence in respect of the re-opening of SCCIV-2244-1996.  Mr Garrett then foreshadowed certain proceedings under s 88 of the Trade Marks Act 1995 (Cth) as well as under ss 51AA, 51AB, 51AC, 51ACAA, 52 and 53 of the Trade Practices Act 1974 (Cth).   

12                  It is evident that the declaration sought in this proceeding in relation to the Andrew Garrett Family Trust No 2 sit within a very wide and complex set of facts involving claims against Fosters Group Ltd or companies within the Fosters Group.

13                  In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356 [48] the majority observed that one crucial difference between an advisory opinion and a declaratory judgment was the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties.  They then adopted, with apparent approval, what is found in Zamir & Woolf, ‘The Declaratory Judgment’, (1993) 2^nd Ed where it was emphasised that where the dispute is divorced from the facts it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. 

14                  In my opinion such is the situation here. 

15                  The declarations sought are not directed to a resolution of the complex factual matters adverted to by Mr Garrett in his correspondence addressed to Fosters Group Ltd although in a very limited way they may relate to them.  The affidavit does not clarify the interest which is said to be the subject of the declarations sought.  Furthermore the application filed by Mr Garrett does not name any respondents.    

16                  However, Mr Garrett confronts, in the case of the first seven declarations sought and which concern the so-called Garrett Family Trust, a more fundamental difficulty.  Lander J has already concluded that the Garrett Family Trust does not exist and never has existed.  Mr Garrett, on the first occasion this matter came before me, in effect, said that he was hoping to persuade a different judge to his case on this question.  Very detailed submissions were put on by Mr Garrett which canvassed the evidence before Lander J in the earlier proceeding.  Apart from those submissions, much of the balance of these submissions raised quite irrelevant material.  It is unnecessary to set out that material here.

17                  Mr Garrett submitted that, as a trustee, he is entitled to seek the opinion of the Court.  Assuming that this submission relates also to the last two declarations sought in respect of the Andrew Garrett Family Trust No 2, the third applicant, I would decline to make the declarations sought, as this Court has no statutory jurisdiction in this respect.  It does not involve a federal matter. 

18                  There is jurisdiction vested in several Supreme Courts of the States in this regard.  For example, in the State of Western Australia, the Supreme Court of Western Australia has jurisdiction under the Trustees Act 1962 (WA) to hear and determine applications by a trustee under s 92. 

19                  I am satisfied on the material before me in respect of the first seven declarations sought that even if the application were otherwise competent and within jurisdiction, it is an attempt to re-litigate the same issue as to the existence of the so-called Garrett Family Trust as was decided by Lander J and should be dismissed under O 20 r 5(1)(b) and (2) of the Federal Court Rules as an abuse of the process of the Court.  The application, otherwise, does not raise a federal matter and is accordingly beyond the jurisdiction of the Court.  In any event, it raises questions which do not demonstrate a real interest and there is no contradictor.  This application ought be dismissed. 

Associate:

Dated:         23 March 2009