FEDERAL COURT OF AUSTRALIA

Treasury Wine Estates Vintners Limited v Garrett, in the matter of Treasury Wine Estates Vintners Limited [2016] FCA 496

ORDERS

THE COURT ORDERS THAT:

1.    The Defendant’s statutory demand for payment of a debt in the sum of $300,000 dated 3 December 2015 be set aside.

2.    The Defendant be restrained from serving any additional statutory demands for payment on the Plaintiff or any associated entity of the Plaintiff (as defined in the Corporations Act 2001 (Cth), including Make Wine Pty Ltd, VOK Beverages Pty Ltd or any related body corporate, employee, agent or adviser of the Plaintiff, Make Wine Pty Ltd and VOK Beverages Pty Ltd), in connection with the settlement deed dated 26 July 2000 between the Plaintiff and the Defendant (and others), without leave of this Court.

3.    The Defendant pay the Plaintiff’s costs of and incidental to the Plaintiff’s application, including any reserved costs.

4.    The application of the Defendant pursuant to s 37AR(2) of the Federal Court of Australia Act 1976 (Cth) to institute cross-claims and counter-claims be dismissed.

5.    The Defendant pay the prospective Cross-defendants’ costs of and incidental to the application of the Defendant to institute cross-claims including any reserved costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The plaintiff (‘Treasury Wine’) seeks orders that a statutory demand for repayment of a debt of $300,000 served on it by the defendant (‘Mr Garrett’) be set aside pursuant to s 459G, s 459H or s 459J of the Corporations Act 2001 (Cth) (the ‘Act’).

2    In essence, Treasury Wine contends that the statutory demand should be set aside because:

(a)    it was served in contravention of vexatious litigant orders that apply to Mr Garrett;

(b)    there is a genuine dispute about the existence of the debt claimed;

(c)    the demand is defective because it is vague and ambiguous; and

(d)    the demand is an abuse of process.

3    In addition, Treasury Wine seeks an order that Mr Garrett be restrained from issuing any further statutory demands on it, or any associated entity of it, in connection with a deed of settlement dated 26 July 2000 (the ‘Deed’) made between Treasury Wine and Mr Garrett (and others) without the leave of this Court.

4    Treasury Wine’s application was supported by an affidavit sworn by its solicitor, Matthew Richard Critchley.

5    In response to Treasury Wine’s application, Mr Garrett filed a notice to admit dated 5 January 2016, and an interlocutory process dated 8 February 2016 seeking relief by way of counter-claim and cross-claim, and relied upon certain affidavit material. Mr Garrett also sought to have Treasury Wine’s application summarily dismissed, primarily because he contended there was no admissible evidence in support of the application.

THE STATUTORY DEMAND

6    The statutory demand was served on 3 December 2015.

7    The statutory demand stated:

DESCRIPTION OF THE DEBT

For the amount of money payable to the Creditor pursuant to cl 9.2(b) of the Deed of Settlement Dated 26th July 2000

8    An affidavit of Mr Garrett dated 18 June 2014 was attached to the statutory demand, and stated to be an affidavit in support of the statutory demand.

9    Mr Garrett’s affidavit contended that:

…

3.    The Respondent (referred to in the attached Statutory Demand as ‘the Company’) is indebted to the Applicant (referred to in the attached Statutory Demand as ‘the Creditor’) in the amount of $300,000 as set out in the attached Statutory Demand.

4.    I know this to be true as the amount of the Debt is calculated from Clause 9.2(b), Clause 9.3 of a Deed of Settlement dated 26th July 2000 (“The Deed”) which binds the Company to me and obliges that payment to be made to me.

5.    Requests for payment of the outstanding debt referred to [in] the Statutory Demand have been made by the Creditor.

6.    No allegation of dispute has been made to me and I believe there is no genuine dispute about the existence or amount of the debt.

7.    The Debt is a debt that is the subject of the Garrett Family Trusts Settlement Deed dated 4th May 2015 that expressly provides an interest in my personal interests in respect to the amounts payable under cl 9.2(b) and cl 14, cl 15 and cl 17.3 of the Deed of Settlement dated 26th July 2000.

8.    The debt of $300,000 mentioned in paragraph 3 of this Affidavit is due and payable by the debtor company to me.

Relevant vexatious litigant orders

10    Justice Mortimer in Garrett v Make Wine Pty Limited (2014) 323 ALR 652 made orders on 21 November 2014 that Mr Garrett be prohibited from, amongst other things, instituting or being concerned with the institution of any proceedings in this Court without obtaining leave. Specifically, Mortimer J ordered:

There be an order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) that:

Andrew Morton Garrett is hereby prohibited from:

a)    instituting in his own name; or

b)    causing others to institute; or

c)    being concerned, whether directly or indirectly, in the institution of any proceedings in any registry of the Federal Court of Australia against Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited or any related body corporate, employee, agent or adviser of Make Wine Pty Ltd, VOK Beverages Pty Ltd, Treasury Wine Estates Vintners Limited without the leave of this Court.

11    Justice Pagone also made orders on 26 February 2015 in Garrett v Commissioner of Taxation (2015) 147 ALD 342 (where Mr Garrett was the applicant) as follows:

THE COURT DECLARES THAT:

1.    The applicant is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.

2.    By this proceeding the respondents are each persons against whom the applicant has instituted or conducted a vexatious proceeding.

AND THE COURT ORDERS THAT:

3.    The applicant is prohibited from:

(a)    instituting in his own name; or

(b)    causing others to institute; or

(c)    being concerned, whether directly or indirectly, in the institution of,

any proceeding in any registry of the Federal Court of Australia against the Commissioner of Taxation, any Second Commissioner of Taxation, any Deputy Commissioner of Taxation, any person who is or was employed in the Australian Taxation Office as an “APS employee” within the meaning of the Public Service Act 1999 (Cth), or any agent or adviser of the Commissioner of Taxation without the leave of this Court.

4.    The applicant is prohibited from:

(a)    instituting in his own name; or

(b)    causing others to institute; or

(c)    being concerned, whether directly or indirectly, in the institution of,

any proceeding in any registry of the Federal Court of Australia without the leave of this Court.

12    Then, in Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577, Davies J considered the consequence of the vexatious litigant orders made by Mortimer J. The proceeding before Davies J concerned nine separate applications by Treasury Wine to set aside statutory demands served by Mr Garrett in respect of alleged debts said to arise under the Deed. Justice Davies held (at [60]–[61]) that service of a statutory demand can be regarded as the institution of proceedings within the meaning of s 37AQ of the Federal Court of Australia Act 1976 (Cth) (the ‘FCA’), and consequently that they had been served in contravention of s 37AQ(1) and were stayed by operation of s 37AQ(2). Her Honour said that Mr Garrett could not rely on the statutory demands for the purpose of commencing winding up proceedings against Treasury Wine and subsequently ordered the statutory demands be set aside.

HISTORy OF DISPUTATION

13    I do not delay to set out the lengthy history of litigation between Treasury Wine (and related entities) and Mr Garrett, which is set out conveniently in the judgments of Davies J in Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577 and Mortimer J in Garrett v Make Wine Pty Limited (2014) 323 ALR 652.

14    Putting aside the injunctive relief sought by Treasury Wine, the issues before the Court in this proceeding have been previously fully ventilated by this Court, particularly by Mortimer J in Garrett v Make Wine Pty Limited (2014) 323 ALR 652. After careful consideration, Mortimer J dismissed Mr Garrett’s claims on the basis that the proceeding he brought constituted an abuse of process. As in this proceeding, his allegations by way of response to the application then brought by Treasury Wine related to the Deed.

15    Justice Mortimer made the following findings:

[107]    Mr Garrett’s causes of action in relation to alleged breaches of the 2000 deed, and any interests he had to be paid, or rights he had available for exercise, under that deed which could have resulted in additional funds being available for creditors vested in his trustee in bankruptcy. Having been divested of that property on bankruptcy, he does not reacquire it after his discharge and is not able to issue proceedings in relation to the 2000 deed.

…

[135]    ... the only claims which could be said to be the subject of Anshun estoppel are the claims to payments under the 2000 deed, based on a construction of cl 9 in particular, as against the third respondent only. The first two respondents have not been parties to any previous proceedings and no estoppels could be raised in relation to Mr Garrett’s claims against them. I accept the respondents’ submissions to that limited extent.

    …

[206]    For those reasons in my opinion the proceedings should stand dismissed in their entirety as an abuse of the processes of this court. As I have found at [135] and [107] above, Mr Garrett is also estopped from making some claims in this proceeding and lacks standing to make others.

16    Justice Mortimer found that Mr Garrett had no apparent legal basis upon which to contend that he had any extant entitlement against Treasury Wine (or any associated entity) in respect of the Deed.

17    Justice Mortimer also made the following findings in relation to the vexatious litigant order:

[212]    ... in the circumstances I have outlined in these reasons for judgment it cannot be said that Mr Garrett had reasonable grounds for commencing yet another proceeding to pursue his view of the performance of the 2000 deed and its consequences. On any objective basis, both in terms of former opportunities, and the subject matter of previous proceedings, there was no reasonable basis to believe a court would allow Mr Garrett yet another chance to re-litigate his view of the performance of the 2000 deed and its consequences, with all the attached cost and resources impositions it placed on both the court and the respondents. In that sense, this proceeding was in my opinion instituted without reasonable ground, for the purposes of s 37AM(1)(c).

…

[214]    ... Mr Garrett is a person who has, on any view “frequently” issued proceedings in both this court (now in three different registries and on multiple occasions) and in the South Australian Supreme Court at least. Anderson and Layton JJ both found Mr Garrett’s proceedings before them to constitute an abuse of process, and found other proceedings he had issued were also an abuse of process. Mansfield and Lander JJ have made similar findings. Gilmour J also found in the proceedings before him that Mr Garrett was attempting to re-litigate issues. Their Honours’ descriptions of the nature of Mr Garrett’s claims in the matters before them confirm in my own mind those proceedings meet either para (a) or para (c) of the definition of “vexatious proceeding” in s 37AM(1), or both of those definitions. Further, and simply by way of example, there was no reasonable ground for the proceeding against the Deputy Commissioner of Taxation recently dismissed by Davies J. It is notable in my opinion that none of Mr Garrett’s substantive claims have ever been permitted to go to trial. This, in and of itself, satisfies me that he has frequently instituted vexatious proceedings within the meaning of s 37AM(1)(c).

18    On 5 December 2014, Mr Garrett applied for leave to appeal the decision of Mortimer J. That application was heard before Beach J on 13 March 2015 and was refused.

19    During the period from 18 June 2014 to 29 July 2014, Mr Garrett (and related parties) served several statutory demands for payment on Treasury Wine (or associated entities) in respect of debts said to arise under the Deed.

20    Orders were subsequently made by consent that these statutory demands be set aside.

21    On 10 March 2015, Mr Garrett (and related parties) served nine statutory demands for payment by Treasury Wine in respect of debts said to arise under the Deed.

22    As I have indicated, Davies J in Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577 ordered that each of those statutory demands be set aside.

23    Whilst judgment in this proceeding was reserved, Mr Garrett threatened to issue another statutory demand. On 21 April 2016, before North J, upon interlocutory application by Treasury Wine, Mr Garrett undertook that until 30 July 2016 he would not take any further steps to serve any statutory demands in relation to any debt or claim under, or in connection with, the Deed.

TREASURY WINE’s APPLICATION

Basis of claims

24    With this background, I now turn to consider the application and claims of Treasury Wine.

25    First, Mr Garrett has not complied with the vexatious litigant orders made by this Court. On this basis, the statutory demand should be stayed by operation of s 37AQ(2) of the FCA, and as such cannot be relied upon by him. In itself this would be sufficient basis to set aside the statutory demand under s 459J(1)(b) of the Act.

26    Further, the statutory demand should be set aside for the same reasons as the statutory demands were set aside before Davies J in Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577.

27    The description of the debt in this proceeding is essentially the same as the descriptions in the statutory demands, the subject of Davies J’s decision – see (2015) 235 FCR 577 at [18], [30] and [36]. The inadequacy of the descriptions in those demands was one of the bases upon which Davies J set them aside. I set aside the statutory demand the subject of this proceeding on the same basis.

28    Then the statutory demand should also be set aside because there is a genuine dispute concerning its existence: see s 459H of the Act.

29    The issue of Treasury Wine’s indebtedness to Mr Garrett has been decided by Mortimer J in Garrett v Make Wine Pty Limited (2014) 323 ALR 652 and by Davies J in Treasury Wine Estate Vintners Limited v Garrett (2015) 235 FCR 577 at [63]–[64]. In deciding against Mr Garrett, Davies J held (at [63]) that:

[f]irst, as to the statutory demands that are based upon Mr Garrett’s construction of clause 9.2 (see VID 159 and 164 of 2015), a genuine dispute will exist if there are plausible competing constructions of that clause. TWEV argued that a separate payment is not due to Mr Garrett personally under clause 9.2. It was argued that clause 9, on its proper construction, only obliged it to make the quarterly payments prescribed in clause 9.1(b) for the term of the agreement: that is, for 10 years, not “in perpetuity”. Such a construction is plausible, given that clause 9.1(b) is “subject to Clause 9.2”. It is open to construe clause 9.2, when read with clause 9.1(b), as prescribing the minimum and maximum amounts payable by TWEV pursuant to clause 9.1(b) each quarter for the period 1 July 2000 to 1 July 2010. Such a construction is tenable. It is unnecessary to reach any final conclusion on the proper construction as it is sufficient that there is a reasonable argument to the contrary of the construction that Mr Garrett advanced.

30    There is no material difference between the claim the subject of the present statutory demand and those that Davies J considered. There is no reason for doubting the correctness of her Honour’s decision about the construction of the Deed and her Honour’s conclusions, with which I agree and adopt.

31    Mr Garrett did raise an argument (without any substantiation) that all previous orders have been obtained by (equitable) “fraud”. No particulars were provided by him to establish even a prima face case of equitable fraud sufficient to set aside the previous orders. Whilst Mr Garrett hoped to find evidence to support his suspicions about various alleged misconduct by earlier decision-makers and participants in the Court process, no proper basis for setting aside previous orders (including that of Davies J) has been provided by Mr Garrett.

32    I also consider Mr Garrett’s conduct in serving the statutory demand to be improper and constitutes an abuse of process. For that reason, it should be set aside under s 459J(1)(b) of the Act.

33    The present statutory demand is the twentieth demand that Mr Garrett has served on Treasury Wine (or its associated entities) in the past 18 months. Each has related to Mr Garrett’s purported rights under the Deed.

34    Service of a statutory demand may amount to an abuse of process: see eg Equuscorp Pty Ltd v Perpetual Trustees WA Ltd (1997) 25 ACSR 675 at 694 and 700 per French, Kiefel and Sundberg JJ; First State Computing Pty Ltd v Kyling (1995) 13 ACLC 939 at 951 per Santow J; TS Recoveries Pty Ltd v Sea-Slip Marinas (Aust) Pty Ltd (2007) 25 ACLC 1371 at [17] per Barrett J; Intergraph Public Safety Pty Ltd v Tess Lawrence Media Services Pty Ltd (1996) 19 ACSR 523 at 526-7 per Heerey J and Poonon Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1121 at [21] per Austin J.

35    In relation to the similar demands considered by Davies J in Treasury Wine Estate Vintners Limited v Garrett (2015) 235 FCR 577, her Honour concluded (at [71]):

[I]t is reasonable to infer that Mr Garrett served these statutory demands for an improper purpose. Mr Garrett deposed in relation to each of the statutory demands that no allegation of dispute had been made to him and that he believed there was no genuine dispute about the existence or amount of the debt. That deposition cannot be accepted as correct in light of the history of litigation between the parties over numerous years and most recently in 2014. The very basis upon which TWEV sought summary judgment against him in the 2014 proceedings was that TWEV disputed any liability to him as alleged under clause 9.2 or clause 17.3: Garrett v Make Wine Pty Ltd 323 ALR 652. Mortimer J held that the proceeding was an abuse of process and a vexatious proceeding. Mr Garrett was clearly on notice when he served the demands that there is a dispute between him and TWEV as to whether any amount is due to him under clause 9.2 or clause 17.3. In the circumstances, it is untenable that Mr Garrett genuinely believed that there was no dispute when he served the statutory demands.

36    I apply and adopt this analysis to this proceeding.

37    In light of the above reasons, I will set aside the statutory demand.

Relief - injunction

38    I now come to consider the relief sought by way of injunction.

39    The Court has power to prevent the abuse of its processes: see eg Hunter v Leahy (1999) 91 FCR 214 at [14]–[15] per French J (as he then was); Optquest Pty Ltd v Marchesi [2011] VSC 428 at [19] and [33]–[36], and s 23 of the FCA. I should mention that the injunction sought by Treasury Wine is not made (nor could it be) pursuant to s 1324 of the Act – see Treasury Wine Estates Vintners Limited v Garrett (2015) 235 FCR 577 at [72] per Davies J.

40    A number of matters can be observed. The service of the statutory demand on Treasury Wine by Mr Garrett was in contravention of the vexatious litigant orders made against him by Mortimer J and Pagone J.

41    I have come to the conclusion, based upon the history involving Treasury Wine and Mr Garrett, that Mr Garrett’s use of the statutory demand procedure is part of a deliberate strategy adopted some time ago. Mr Garrett’s use of the statutory demand procedure is an attempt to circumvent the restrictions imposed by the vexatious litigant orders and to re-litigate matters already decided against him. This proceeding itself has been used as a vehicle to raise issues that are wholly unrelated to the statutory demand.

42    I have no doubt that Mr Garrett appreciates that service of a statutory demand on Treasury Wine will invariably be met with an application to set it aside. Any stay effected by s 37AQ(2) offers only limited protection to Treasury Wine, which has been and will be forced to apply to set aside the demand, incurring further costs. This is in circumstances where Mr Garrett has sought to re-litigate his entitlement under the Deed on numerous occasions with no legal basis, and having previously served many statutory demands for payment, which have subsequently been set aside or withdrawn.

43    As indicated, whilst this judgment has been reserved, Mr Garrett has shown a predisposition to keep serving additional statutory demands for payment on Treasury Wine in respect of his alleged entitlements under the Deed. Mr Garrett will keep doing so, unless he is restrained.

44    I consider it appropriate that Mr Garrett be restrained from serving, except with leave of this Court, any further statutory demands against Treasury Wine or its associated entities in connection with the Deed.

45    I am mindful that preventing the exercise of a statutory right, involving here a procedure set down in the Act, is a course not taken without very good cause.

46    However, in addition to the above considerations I have mentioned, the service of a statutory demand, even if stayed, could have serious consequences for Treasury Wine. Some other creditor could seek to rely upon the statutory demand, or failure to comply may involve breach of financial obligations otherwise placed upon Treasury Wine.

47    It is apparent by the terms of the order I propose, that the restraint is subject to the leave of this Court. Therefore, if circumstances arise where the service of a statutory demand is appropriate, the Court may give leave for its service.

OTHER MATTERS

48    There are a number of other matters that were raised by Mr Garrett in the course of the hearing relevant to the application by Treasury Wine that I need to mention.

49    As I have indicated Mr Critchley swore an affidavit in support of the application of Treasury Wine. This application was treated as a final hearing, as were the cross-claims and counter-claims brought by Mr Garrett. The entirety of Mr Critchley’s affidavit was objected to by Mr Garrett on the basis that it was hearsay. This objection was well made to the extent that the evidence of Mr Critchley was on the basis of information and belief. However, to the extent the affidavit merely introduced into evidence documentation (which was not in dispute between Treasury Wine and Mr Garrett), I accept the evidence of Mr Critchley on that basis as verifying that documentation. To the extent to which there was any other commentary or evidence, it was ruled to be inadmissible and I did not rely upon it. Whether pursuant to s 190(3) of the Evidence Act 1995 (Cth) (the ‘Evidence Act’), or otherwise, in relation to the documentation referred to by Mr Critchley, I would in any event dispense with the operation of s 59 of the Evidence Act as the documentation is not genuinely in dispute, and adherence to s 59 would cause unnecessary expense and delay in the determination of the proceedings.

50    It will be recalled that Mr Garrett sought to summarily dismiss Treasury Wine’s application on the basis that there was no evidence to support the application. I reject that contention, as Treasury Wine could rely upon the documentation in Mr Critchley’s affidavit, which on any view supported the application made by Treasury Wine to set aside the statutory demand and seek injunctive relief.

51    There was some debate in the Court as to whether or not the Deed referred to in Mr Critchley’s affidavit was the complete document. In the end this difficulty disappeared, because Treasury Wine was content to rely upon the contents of the Deed put forward by Mr Garrett. In any event, there seemed to be no particular relevant issue that arose as to the interpretation and application of the Deed as determined in previous decisions of this Court. Mr Garrett’s submission was directed to the contention that the previous decisions should be set aside, an argument I have found devoid of any substantive or evidentiary foundation.

52    As I have also indicated, Mr Garrett issued a notice to admit seeking to have admissions from Treasury Wine. That notice to admit was not responded to on the basis that Treasury Wine contended that it was an abuse of process. In my view, the issue of the notice to admit was an abuse of process brought in support of allegations raised by Mr Garrett, which I have regarded as being an abuse of process in themselves and without foundation.

53    Finally, Mr Garrett sought to cross-examine Mr Critchley.

54    If a party requests to cross-examine a witness then that request should generally be adhered to by the Court. However, such a request must be considered subject to a number of matters, which include the power of the Court to control its own proceedings (see s 11 of the Evidence Act). In addition, the Court has power to control the nature of the questioning (see, eg, s 29(1) and s 41 of the Evidence Act). I propose to consider the request of Mr Garrett to cross-examine Mr Critchley using the powers of the Court under s 11 and s 29(1), and exercise my discretion accordingly.

55    During the hearing, I took the course of asking Mr Garrett to indicate the topics upon which he desired to cross-examine Mr Critchley, my having previously ruled that only the documentation referred to by Mr Critchley would be allowed into evidence.

56    It became apparent during the course of the hearing that the reasons Mr Garrett wished to cross-examine Mr Critchley had no bearing on the relevant issues before the Court. The questions sought to be asked were extraneous to the issues that need to be determined on the application of Treasury Wine and Mr Garrett’s defence to that application.

57    I did not permit Mr Garrett to cross-examine Mr Critchley. Nevertheless, I indicated during the hearing that if I thought that the cross-examination was necessary in the interests of a fair trial upon considering the matter in reserving my judgment, I would allow Mr Garrett to cross-examine and re-list the proceeding for further hearing.

58    In my view, the interests of justice (including providing Mr Garrett with a fair trial) do not require any cross-examination of Mr Critchley as indicated by Mr Garrett. The matters sought to be cross-examined upon relate to the cross-claims and a re-agitation of issues already decided against Mr Garrett in earlier decisions of this Court. The topics raised by Mr Garrett upon which he wanted to cross-examine related to a wide ranging enquiry of Mr Critchley, including Mr Critchley’s own interpretation of the Deed, other matters which would have involved going behind legal professional privilege without any cause, impugning (without any basis or relevance) the conduct of Mr Critchley and his legal firm, and seeking to obtain general information to assist Mr Garrett in his endeavour to persuade third parties to his point of view or as part of a fishing expedition to bring or prosecute proceedings. In my opinion, the whole of the cross-examination would have been undertaken for extraneous purposes to the proceeding. It would have been an abuse of process to allow Mr Garrett to cross-examine as he proposed, in circumstances where the real dispute was confined in the way indicated above, and where Mr Garrett has abused the process of the Court in connection with the proceedings themselves.

the cross-claims AND COUNTER-CLAIMS

59    I now turn to Mr Garrett’s cross-claims and counter-claims. Mr Garrett relied upon a vast array of material, including affidavits originally filed in other proceedings, interlocutory applications that had been rejected for filing in this Court, and outlines of submissions in other cases. It would unnecessarily burden these reasons for judgment to set out each of those affidavits and materials relied upon.

60    During the hearing, Mr Garrett applied for leave pursuant to s 37AR(2) of the FCA, to institute his cross-claims and counter-claims (which are relevantly “proceedings” to which the vexatious litigant orders of Mortimer J and Pagone J apply). It may be immediately observed that his affidavits in support do not comply with any of the sub-paragraphs to s 37AR(3) of the FCA. Nor do they even substantially comply, if that is a relevant consideration.

61    On this basis alone, I dismiss any application for leave pursuant to s 37AS(1) of the FCA.

62    Additionally, I consider that the cross-claims and counter-claims would be vexatious within the meaning of paras (a), (b), (c) and (d) of the definition of “vexatious proceeding” in s 37AM(1) of the FCA. It follows that any application for leave would be dismissed pursuant to s 37AS(2).

63    It is appropriate to first comment upon Mr Garrett’s conduct in the proceeding before me. Other judges have made similar comments. Mr Garrett has frequently corresponded by emails to the Court, staff in the registry and staff in my chambers, and has sought to file similar applications. The correspondence and the applications have often been lengthy, attaching multiple documents which have been copied to various individuals and organisations. These emails and applications have canvassed a number of issues unrelated to the application before me brought by the Treasury Wine. Mr Garrett has made multifarious allegations against a wide variety of people without any justification based upon evidence. There is a considerable repetition of the same or similar allegations by Mr Garrett in different proceedings. He engages in a practice of naming large numbers of respondents while not making clear what are the allegations against them, individually or specifically. The allegations he makes, as a basis of various claims are generally unintelligible prolix and often inflammatory.

64    The Cross-defendants named in the cross-claims include judges, registrars, public servants, Ombudsmen, the Governor of Victoria, the Governor of South Australia, the Commissioner of Taxation, Commissioners of Police and various lawyers. As I have stated, no properly articulated allegation is made in relation to each Cross-defendant, nor has there been any attempt to properly do so. All this is apparent from a reading of the materials filed or sought to be filed by Mr Garrett.

65    As Mortimer J said in Garrett v Make Wine Pty Limited (2014) 323 ALR 652 at [204]:

... the underlying subject matter of the proceeding (Mr Garrett’s claims about the 2000 deed and its consequences) has, in part expressly and in other parts in substance, already been the subject of determination according to law, whether by way of summary dismissal of claims or otherwise. Those parts which cannot be said to have been so determined either could have formed part of earlier claims (and may well have in fact formed part of earlier claims, if the documents had been more intelligible to the judges who had to deal with them) or nevertheless involve a level of re-litigation about the 2000 deed and its consequences which should not be permitted. Parties who have already been entangled in litigation by Mr Garrett for more than a decade should not be subjected to further costs and expenditure of time and resources, especially in circumstances where it is apparent Mr Garrett has no capacity to compensate those parties if costs orders are made.

(Emphasis added.)

66    Clearly, Mr Garrett has no respect for authority of courts. Justice Mortimer observed similarly (at [205]):

Time again, judges of this court, and other courts, have ruled on the lack of merit and substance in Mr Garrett’s multifarious claims. Time and again he has refused to accept those rulings, and has looked for ways to circumvent them. Sometimes that has been by moving his claims to other registries of the same court. Sometimes it has been by way of unmeritorious appeals. Sometimes it has been by commencing proceedings in different “capacities”, or by making a claim which enables him to draw in, indirectly, his historic grievances arising from the 2000 deed and its consequences. Whichever way one examines the history of Mr Garrett’s litigation over the last decade, it reveals a lack of respect for the authority of the courts’ decisions made against him.

67    I should say something further about the documentation and allegations made by Mr Garrett in the cross-claim. Many of the allegations use catch-all type language, and identify no specific errors of each Cross-defendant, even where there is a purported attempt to review a Cross-defendant’s decision. Sometimes the language is nonsensical. There is no evidence before the Court to justify any prima facie case of the allegations made, including allegations of fraud (made improperly without any particularisation).

68    It also became apparent during the hearing that Mr Garrett had joined many Cross-defendants in an endeavour to simply obtain documents or information from them as a fishing expedition. During the hearing this exchange occurred between the Court and Mr Garrett:

HIS HONOUR: So you want information from those respondents about the case that you want to defend against the applicant; is that what it’s about?

MR GARRETT: Yes, that’s right. That’s correct, your Honour.

HIS HONOUR: Why didn’t you just try and seek discovery from them, instead of joining them?

MR GARRETT: Well, I am seeking discovery from them, your Honour. By joining them, I am seeking orders for discovery. I could seek non-party orders for discovery, of course, and that would be a function of your Honour’s discretion. But I’m saying that there is enough evidence in the failure to comply with the FOI Act and the section 89K orders made by the Australian Information Commissioner under the Freedom of Information Act, that executive government is hell-bent on not producing any documents of an administrative nature.

So I am saying that the matters arising are of constitutional importance and, indeed, there’s a fundamental issue in all of this is that, if the Constitution Act of the State of Victoria (1975) is invalid under section 109 of the Constitution when read against the separation of powers provision within the Constitution itself, then sadly that inhumes the whole of this court’s power, because every member of the judiciary must be a legal practitioner under the current provisions of the Federal Court of Australia Act. And I am saying that that provision is fundamentally flawed.

I’ve issued a notice of constitutional matter in VID129 of 2015 which is a matter involving the Commissioner of Taxation and nine respondents. And that matter has been adjourned sine die. And I’m saying it’s convenient for this court to consider the constitutional issues arising in VID129 and VID600 concurrently with this proceeding, rather than consume court resources. One of the biggest problems I have, your Honour, is that the costs that my friend has referred to is negligible when compared to the benefit.

69    The position before me is also similar to that before Pagone J in Garrett v Commissioner of Taxation (2015) 147 ALD 342 where his Honour (at [30]) stated:

Mr Garrett’s pleading in this proceeding also alleges that the respondents have acted with an improper purpose in administering the Australian Business Register and in issuing garnishee notices. None of the pleadings disclose any proper foundation for those allegations of improper purpose. Pleadings of that kind, without proper foundation, can only be explained as done so as to harass or annoy the respondents. Mr Garrett was previously criticised for making serious assertions without support. In Garrett v Macks [2006] FCA 601, Lander J said at [14]:

These claims in their bald form should never have been made. They make the most serious allegations against a number of people, three of whom are officers of this Court, two of whom are professional persons who act as liquidators and trustees and are, therefore, responsible in that manner to this Court, and one of whom, of course, is a senior public officer, being the Deputy Commissioner of Taxation. Mr Garrett has made no effort in any way to support the allegations made in the proceeding. It was put by Mr Evans, by way of evidence, but really by way of submission in paragraph 19 of his affidavit, that the allegations are scandalous. I agree.

Despite these observations, Mr Garrett repeated the allegations against Mr Macks (see Garrett v Macks [2009] FCA 253 at [8]), and has made allegations of a similar kind in the present proceeding. Whatever might be Mr Garrett’s subjective motivation for making serious allegations of this kind without proper foundation, the conduct of proceedings by Mr Garrett in making such allegations, especially in light of his past and repeated conduct, is “in a way” so as to harass or annoy the respondents. The absence of any proper foundation for allegations of the kind alleged by Mr Garrett manifests conduct to harass or annoy because no other purpose is achieved by the claims made.

70    I have come to the view that the attempt to institute the cross-claims and counter-claims has been made to harass and annoy without there being any evidentiary foundation or reasonable ground for the allegations made by Mr Garrett. The cross-claims and counter-claims are, in their entirety, an abuse of process of this Court.

71    The appropriate order is to dismiss Mr Garrett’s application for leave to institute the cross-claims and counter-claims.

72    I make two other observations. Mr Garrett has sought to file many other proceedings which the Court has directed not be accepted for filing. They all suffer from the same defects I have just described above in relation to the cross-claims and counter-claims, and Mr Garrett, in seeking to file such other proceedings, has similarly followed the same course of conduct described by other judges as detailed above.

73    Mr Garrett also sought to have the Court not proceed until the relevant Attorneys-General have had notices given to them pursuant to s 78B of the Judiciary Act 1903 (Cth). No substantive constitutional point has been raised by Mr Garrett, and no notices were required to be given before this proceeding (including the cross-claims and counter-claims) could be determined by this Court.

DISPOSITION

74    Before I indicate the orders I propose to make, I need to make another observation.

75    In his cross-claims, Mr Garrett has joined the Federal Court of Australia itself, and a number of Federal Court judges, including myself, for the purposes of judicial review (but as I have indicated, without any particularity). Mr Garrett also sought in his filed application that I make certain orders, and thereafter proceed no further and recuse myself. Nevertheless, in the hearing and subsequently, Mr Garrett has entreated the Court to come to a determination on a number of matters, including summarily dismissing the claim by Treasury Wine and making various orders against the Cross-defendants.

76    Mr Garrett is not entitled to blow hot and cold on my participation in making a determination on all the matters before me. Mr Garrett has effectively waived any objection to my hearing and determining the proceedings.

77    On the basis of the above reasons, I will order that:

(1)    The Defendant’s statutory demand for payment of a debt in the sum of $300,000 dated 3 December 2015 be set aside.

(2)    The Defendant be restrained from serving any additional statutory demands for payment on the Plaintiff or any associated entity of the Plaintiff (as defined in the Corporations Act 2001 (Cth), including Make Wine Pty Ltd, VOK Beverages Pty Ltd or any related body corporate, employee, agent or adviser of the Plaintiff, Make Wine Pty Ltd and VOK Beverages Pty Ltd), in connection with the settlement deed dated 26 July 2000 between the Plaintiff and the Defendant (and others) without leave of this Court.

(3)    The Defendant pay the Plaintiff’s costs of and incidental to the Plaintiff’s application, including any reserved costs.

(4)    The application of the Defendant pursuant to s 37AR(2) of the Federal Court of Australia Act 1976 (Cth) to institute cross-claims and counter-claims be dismissed.

(5)    The Defendant pay the prospective Cross-defendants’ costs of and incidental to the application of the Defendant to institute cross-claims including any reserved costs.

Associate:

Dated:    11 May 2016