FEDERAL COURT OF AUSTRALIA

Garrett v The Chief Executive of Austrade (No 2) [2015] FCA 242

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 15 February 2015 be dismissed.

2.    The applicant pay the respondents’ costs of that application.

3.    The time for the filing of any application for leave to appeal against the above orders be extended to the fourteenth day after the publication of the court's reasons for the making of those orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 16 March 2015 I dismissed an interlocutory application filed by the applicant on 15 February 2015. These are my reasons for having done so.

2    The applicant sought orders as follows:

1.    That an order is made granting leave to the Applicant relies on the affidavit materials filed in this proceeding and VID 187 of 2014 in support of this application.

2.    That an order is made summarily pursuant to r 31.12(1) of the Federal Court rules that the claim of the Applicant made in VID 585 of 2014 under the provisions of the Administrative Decisions Judicial Review Act 1977 (Cth) is added to the claim made in this proceeding.

3.    That an order is made summarily by this Learned Court that

a.    a Perogative [sic] Writ of Mandamus is issued under s 39B of the Judiciary Act 1903 (Cth) that the Respondent accepts the Certificate of Solvency dated 16th March 2014 issued by the Applicant as a person authorised to do so under s 87C(3)(b) and that the Respondent complies with the provisions of the Export Market Development Grant Act 1997 (Cth) and accepts certificates of solvency from any person authorised to issue such certificates in accordance with the provisions of s 87C(a)-(f) in the Respondents administration of the Export Market Development Grant Act 1997 (Cth)

b.    a Perogative [sic] Writ of Certiorari is issued under s 39B of the Judiciary Act 1903 (Cth) and/or an order of Judicial Review is made summarily pursuant to s 5, s 7(1)(2) [sic] of the Administrative Decisions Judicial Review Act 1977 (Cth) by this learned Court reviewing the Grant Decision dated 16th September 2014 that the Applicant in his capacity as Trustee of the Andrew Garrett Family Trust No 3 (and/or such other capacity as determined by this Honourable Court) is entitled to be paid the amount of the Grant Ceiling for the Grant Period as Determined bythe Respondent.

c.    and/or an order of Judicial Review is made summarily pursuant to s 5, s 7(1)(2) [sic] of the Administrative Decisions Judicial Review Act 1977 (Cth) by this learned Court reviewing the Decision of the Second Respondent dated 17th March 2014 that the Respondent only accepts certificates of solvency from persons under s 87C(3)(a) of the Export Market Development Grant Act 1997 (Cth), and

d.    and [sic]/or an order in the Nature of Mandamus is made summarily at Common Law that the Respondent complies with the provisions of s 87C(a)-(f) of the Export Market Development Grant Act 1997 (Cth) and accepts certificates of solvency from any person authorised to issue such certificates in the Respondents administration of the Export Market Development Grant Act 1997 (Cth)

4.     That this Honourable Court summarily makes findings;

a.     that the Respondent has failed to comply with s 7(1) of the Civil Disputes Resolution Act 2011 (Cth),

b.     that the Respondent has failed to comply with s 80(1)(c) of the Export Market Development Grant Act 1997 (Cth),

c.     in respect to the Conduct of the Respondent and the Second Respondent as this Honourable Court deems fit pursuant to section 39B of the Judiciary Act 1903 (Cth) and s 6, s7(1)(2) [sic] of the Administrative Decisions Judicial Review Act 1977 (Cth),

d.     that the Respondent has breached its obligations to the Court to act as a model litigant,

e.     as this Honourable Court deems fit

5.     That an order is made summarily that the conduct and breaches subject of this Court’s Orders and Findings have caused damages and consequential loss to the applicant in his capacity as Trustee of the Andrew Garrett Family Trust No 3 and as a General Beneficiary as a parent of the Primary Beneficiaries of the Andrew Garrett Family Trust No 3 and as a Trustee of Eligible Trusts including the OenoViva (Australia & New Zealand) Trust, the Andrew Garrett Family Trust No 4.

6.     That an order is made exercising the Court’s discretion in favour of the Applicant to award costs/disbursements pursuant to s 12 of the Civil Disputes Resolution Act 2011 (Cth) and on the basis that is just and equitable to do so.

7.     Such other orders as this Honourable Court Deems Fit

3    With respect to para 1 of the orders sought, it became clear when the applicant made submissions in support of an order in those terms that he desired to refer to the affidavit material filed in VID 187 of 2014 because it contained details of the eligible expenditure which was the subject of the application under the Export Market Development Grants Act 1997 (Cth) (“the Grants Act”) to which I referred in Garrett v The Chief Executive Officer of Austrade [2015] FCA 39. The subject matter of the applicant’s case under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), however, is the respondents’ refusal to accept the “certificate of solvency” signed by the applicant for the purposes of s 87C(2) of the Grants Act. The applicant accepted that the matters with which the affidavit material referred to in para 1 of the orders sought was concerned are not relevant to the administrative law grounds of challenge advanced in this proceeding.

4    With respect to para 2 of the orders sought, r 31.12(1) of the Federal Court Rules 2011 (Cth) (“the Rules”) does not, of course, provide for the making of any such order as the applicant seeks. Rather, he now accepts that it was a mistake on his part not to have included his claim under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) in the same proceeding as his challenge under s 39B of the Judiciary Act. However that may be, and accepting for the moment the existence of power to enlarge the scope of the present proceeding to encompass the case originally advanced by the applicant under the ADJR Act in VID 585 of 2014, the insuperable difficulty for the applicant is that that case was dismissed by the order which I made on 5 February 2015. To the extent that the applicant had a cause of action under the ADJR Act, it has now been judicially determined, and there is nothing left to be brought into the present proceeding.

5    With respect to para 3 of the orders sought, what the applicant effectively seeks is an order giving summary judgment in his favour under s 31A(1) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). He does so on the ground that the respondents’ case is so hopeless that it could not possibly succeed. He has ten so called “limbs” to this ground, only the first of which requires specific mention.

6    That limb involves the contention that there were several previous occasions upon which the respondents had the opportunity to controvert the applicant’s proposition that he was the “receiver … of the property of the body corporate” within the meaning of s 87C(3)(b) of the Grants Act – that they had, in the applicant’s words, “waived” their right now to advance such a contention. At first, the applicant characterised this situation as involving an issue estoppel working against the respondents, but he was unable to refer me to any previous judicial adjudication with respect to the point and, ultimately, accepted that this was not an accurate characterisation of his contention. He was content to describe the point as one which involved a waiver by the respondents of any right that they may have had to contend that the applicant was not a receiver within the meaning of s 87C(3)(b).

7    Whatever else may be said in favour of this submission of the applicant, it would not, in my view, be open to the court to uphold it in advance of receiving the respondents’ defence. For reasons probably related to earlier procedural steps taken in this proceeding, a defence is yet to be filed. Whatever may be the rights and wrongs of the respondents’ omission in that regard, the fact is that, until they have made clear how they respond to the applicant’s case, the court is in no position to reach the state of satisfaction referred to in s 31A(1)(b) of the Federal Court Act.

8    I would reach the same conclusion with respect to the other nine “limbs” advanced by the applicant with respect to his case under the third order sought in his interlocutory application. Each of those limbs was argumentative in relation to the merits of the case in one respect or another, inviting the court, in effect, to reach the summary conclusion that the merits were so conspicuously in favour of the applicant that the respondents had no reasonable prospect of prevailing. As I have said, this case does not present any such exceptional features as would justify the making of an order under s 31A(1) before the respondents had even propounded the terms in which they would defend themselves against the applicant’s allegations. Additionally to, and apart from, that consideration, from what the applicant told me in the submissions which he made on the present occasion, I could not reach the state of satisfaction referred to in that section in relation to any of the nine points which he advanced.

9    With respect to para 4(a) of the orders sought, counsel for the respondents accepted that his clients had not, in point of fact, filed a Genuine Steps Statement in compliance with s 7(1) of the Civil Dispute Resolution Act 2011 (Cth) (“the CDR Act”). It was submitted that they were under no obligation to do so. Section 7(1) does not specify the time at which, or by which, a respondent must file such a statement. But s 8 of the CDR Act provides that any Genuine Steps Statement must comply with requirements specified in the Rules of Court. Under r 5.03, the respondents were to have filed their Genuine Steps Statement “before the return date fixed in the originating application”. This is a proceeding commenced by electronic filing on 24 September 2014, and the “time and date for hearing” on the first page of the originating application itself were left blank. Looking only at the application, therefore, there was no “return date fixed” within the meaning of r 5.03(1). It is true that the electronic artefact constituting the originating application was covered by a “Notice of Filing and Hearing”, at which the “time and date for hearing” were given as 14 November 2014, 9:30 am. But this was not in the originating application itself and did not, in my view, trigger the operation of r 5.03(1).

10    It was also argued on behalf of the respondents that the present proceeding was commenced (although not perhaps continued) as an “ex parte proceeding” within the meaning of para (h) of s 15 of the CDR Act and was, therefore, an “excluded proceeding”. The factual basis for this submission was, it seems, that the applicant did not initially serve his originating process upon the respondents. Having found out about that process in some way, it seems that the respondents took steps to retrieve copies of it for themselves from the court file. However these considerations may be, they are irrelevant to the respondents’ obligation under s 7(1) of the CDR Act. The significance of a proceeding being “excluded” within the meaning of s 15 of that Act is, as it seems to me, that the applicant need not file a Genuine Steps Statement under s 6: see s 6(3). However, if the applicant dies file such a statement, the respondents’ obligation under s 7(1) is unqualified. I would hold, therefore, that there is nothing in the respondents’ “ex parte” point.

11    Because of the form of the applicant’s originating application, I declined to make a finding of the kind sought by him in para 4(a) of the orders sought.

12    There is also, of course, the question of the appropriateness of the court making a “finding”, floating in the ether, as it were, in the absence of any specific final or interlocutory order sought by the applicant. But that difficulty does not need to be further explored, since counsel for the respondents assured the court that his clients would comply with s 7(1) at an early date.

13    With respect to para 4(b) of the orders sought, this relates, it seems, to some head of relief which the applicant would seek to achieve in the proceeding itself. Without giving any advance indication as to the applicant’s entitlement to relief in such terms, it is sufficient to say that it would be quite inappropriate for the court to use a summary process of the kind contemplated to cut the respondents out from advancing their defences in the conventional way.

14    Nothing further needs to be said about subparas (c), (d) and (e) of para 4 of the orders sought.

15    With respect to para 5 of the orders sought, the applicant accepted that it was much too early for the court to enter upon questions of damages and consequential loss.

16    Paragraph 6 of the orders sought is related to para 4(a). However, save with respect to the costs of the interlocutory application itself, there was nothing before the court which would make it an appropriate occasion to award costs or disbursements in the proceeding.

17    For the above reasons, the interlocutory application was dismissed.

18    The respondents sought their costs of the interlocutory application. The applicant proposed that costs should be reserved. In my view, and for reasons which will be apparent both from a perusal of the orders which the applicant sought and from what I have written above, this is clearly one of those interlocutory occasions upon which an award of costs against an unsuccessful applicant is both available and appropriate. The respondents will have their costs.

Associate:

Dated:    19 March 2015