FEDERAL COURT OF AUSTRALIA

Gargan, in the matter of Gargan [2018] FCA 871

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to commence a proceeding, filed on 21 May 2018, be dismissed.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    Peter Alexander Gargan applies for leave to commence a proceeding in this Court. The proceeding he seeks leave to commence is a proceeding to set aside a sequestration order made against him by Hely J on 4 June 2004.

2    Mr Gargan requires leave pursuant to s 37AR of the Federal Court of Australia Act 1976 (Cth) because, by orders made on 23 April 2009, this Court made orders against him pursuant to the former O 21 r 1(1) of the Federal Court Rules 1979 (Cth), to the effect that Mr Gargan may not institute or continue any proceeding in this Court without the leave of the Court. See Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Perram J).

3    By s 37AR(3) of the Federal Court Act, Mr Gargan was required to file an affidavit with his application:

(3)    The applicant must file an affidavit with the application that:

(a)    lists all the occasions on which the applicant has applied for leave under this section; and

(b)    lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)    discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

4    Mr Gargan did file an affidavit with his application, sworn on 22 May 2018.

5    I consider the application for leave to commence the proceeding should be dismissed. Two reasons suffice for refusal of leave, although there may well be more.

6    The first reason is that Mr Gargan has not complied with the terms of s 37AR(3)(b) and (c) of the Federal Court Act. Substantial non-compliance with s 37AR(3) is a ground of itself for refusal of leave: see s 37AS(1).

7    The second reason is that, even if his affidavit was compliant with s 37AR(3), I would be required to refuse leave because I have formed the view that the proposed proceeding is a vexatious proceeding. Section 37AS(2) requires the Court to refuse leave in those circumstances.

8    Leave may be determined without an oral hearing: s 37AS(3), whether or not a prospective applicant consents to that course.

Substantial non-compliance

9    I am not satisfied that Mr Gargan’s affidavit lists “all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section”.

10    Although in his affidavit Mr Gargan does refer to a considerable number of proceedings he has instituted, between approximately 1993 and approximately 2008, he does so in a way which makes it difficult to correlate the proceedings he describes with reported decisions or actual proceedings. However, I have attempted to work through the list of proceedings set out by Perram J in his Honour’s reasons, and compare them with Mr Gargan’s affidavit. I give a couple of examples of omissions from Mr Gargan’s affidavit.

11    At [27] of his Honour’s reasons, Perram J states:

On 27 October 2003 – that is within a period of a few short months – Adams J of the Supreme Court of New South Wales delivered judgment in Gargan v Scott (unreported) striking out Mr Gargan’s claims against Mr Scott and the Commonwealth Bank for damages said to be payable by virtue of alleged breaches of s 43 of the Crimes Act 1914 (Cth) and s 134.2 of the Criminal Code. He sought these from Mr Scott and the Commonwealth Bank on the basis of s 4B of the Crimes Act 1914 (Cth) which allows a court to order that a fine or pecuniary penalty be paid by a person who has been convicted of an offence against a law of the Commonwealth punishable by imprisonment. His entitlement to bring such a suit was conferred, so Mr Gargan said, by s 14 of the Criminal Procedure Act 1986 (NSW) which is a common informer provision.

12    Although Mr Gargan refers in his affidavit to an association with one Anne Teese, and a debt he contends she had to the Commonwealth Bank, which he considered “criminal”, he does not list this Supreme Court proceeding in terms which correlate with Perram J’s account of it.

13    Mr Gargan does not refer to his disqualification applications against Hely J during the trial in relation to the sequestration order sought against him. At [37], Perram J states:

Mr Gargan also sought to have Hely J disqualify himself on the basis that the Commonwealth owned shares in the Commonwealth Bank of Australia, an argument that Hely J confessed had eluded him. He also sought the requisition of a jury on the basis that part of his complaint involved conduct by the legal profession and that Hely J, himself a former barrister, might not give him a fair hearing. Hely J did not agree.

14    Mr Gargan does not refer to his 2007 proceeding in the District Court of NSW, summarised by Perram J at [44]:

So far as can be told Mr Gargan’s next appearance was in the District Court of NSW in Gargan v Commonwealth [2007] NSWDC 14, heard by Balla DCJ on 9 February 2007 and determined by her Honour on 14 December 2007. In those proceedings Mr Gargan complained that his Newstart allowance could be stopped for eight weeks if three participation failures occurred in 12 months. This, so he argued, was a draconian penalty outside the authority of a public servant. He claimed that the arrangement contravened his entitlement to certain modes of trial. He sought a penalty be paid to him of $165,000 and claimed the right to trial by jury. Also before Balla DCJ were three other actions in which Mr Gargan was either a plaintiff or joint plaintiff. It is apparent, however, that each of these actions had nothing to do with Mr Gargan. The first concerned an attempt by a Mr Harding to escape taxation liability by alleging a breach of s 43 of the Crimes Act 1914 (Cth). The second concerned a claim by a Ms Dixon relating to her relationship with a Mr Lewin. The third was a claim by Mr Gargan alone but which appears solely to relate to a Queensland driver’s licence issued to a Mr Ketelhohn.

15    Mr Gargan does not mention his (unsuccessful) attempts to appeal Perram J’s judgment in Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 to the Federal Administrative Appeals Tribunal: see [48] of Perram J’s reasons, and Re Gargan and Federal Court of Australia [2009] AATA 135.

16    Finally, at times Mr Gargan describes some proceedings so vaguely that it impossible to understand what they concerned and, on balance, I consider it is more likely than not he has omitted other proceedings. His evidence is so vague it is impossible to correlate them to the very long list of proceedings contained in Perram J’s reasons for judgment, and by cross reference, the reasons for judgment of Holmes J in Lohe v Gargan [2000] QSC 140.

17    The purpose of the requirement in s 37AR(3) is an important one. It is by this affidavit evidence that the Court is, at least in part, to assess whether the proposed proceeding for which leave is sought should be characterised as a vexatious proceeding. A failure by an applicant fully and frankly to disclose all previous proceedings, and to do so in a way which enables the Court to assess that history of litigation against the current application, adversely affects the Court’s ability to carry out the task required under Div 3 of Pt VAAA of the Federal Court Act.

18    In addition to the omissions and vagueness about past proceedings (s 37AR(3)(b)), Mr Gargan’s affidavit does not depose at all to “all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant”. In context, this is a reference to Mr Gargan’s application for leave to commence a proceeding to set aside the sequestration orders made by Hely J on 4 June 2004. His affidavit does not set out any details, let alone “all relevant facts” about his previous attempts to set aside that sequestration order. Rather, he only states (at [29]) that he “decided to try again to get my second Bankruptcy annulled, after the Federal Court (Criminal Proceedings) Rules 2016 were made on the 6th November 2016, and a way to get an account taken in equity may have been opened up”. I return to this statement at [25] below.

19    However, for present purposes, it is clear there is non-compliance with s 37AR(3)(c).

Vexatious proceeding

20    The term “vexatious proceeding” is defined in s 37AM(1) as including:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)     a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)     a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)     a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

21    It does not appear that Mr Gargan sought to appeal from Hely J’s sequestration orders.

22    However, he did return to this Court, several years later, to seek to challenge those orders.

23    At [46] of his reasons, Perram J describes Mr Gargan’s 2008 litigation in relation to his bankruptcy, and which led ultimately to the vexatious litigant order made by his Honour in 2009:

On 28 June 2008 Mr Gargan commenced proceedings in this court against the Official Trustee in Bankruptcy and Kippin Investments Pty. Ltd. (“Kippin”) which was a successor in title to SAM Industries. He sought the annulment of his first bankruptcy in 1994 and his second bankruptcy in 2004. He also sought an account against Kippin for breaches of fiduciary duty, a claim in negligence against the Official Trustee, a claim for mandamus against the Official Trustee to compel it to commence proceedings against Kippin, a claim in damages pursuant to s 13 of the Crimes Act 1914 (Cth) or s 14 of the Criminal Procedure Act 1986 (NSW) and a claim that s 7 of the Bankruptcy Act 1966 (Cth) meant that Hely J should not have made him bankrupt.

The Official Trustee and Kippin applied for summary judgment. On 29 October 2008 I gave summary judgment to those parties and ordered Mr Gargan to pay the costs thereof on an indemnity basis: see Gargan v Kippin Investments Pty Ltd [2008] FCA 1718. I found each claim to be devoid of merit and without substance. The Official Trustee filed a cross-claim seeking orders dealing with Mr Gargan as a vexatious litigant. It is that cross-claim which is presently before me. (emphasis added)

24    I consider the present application is an abuse of the process of the Court. Mr Gargan could have sought to exercise a right of appeal from Hely J’s orders, but he did not. Instead, several years later he commenced a new proceeding seeking to challenge those, and other, orders. He failed comprehensively in that proceeding. He did not seek leave to appeal from Perram J’s orders.

25    As Perram J noted at [54], the Official Trustee has expended more than $238,000 in dealing with the 18 claims in which it was involved since 1995. The only basis Mr Gargan gives for his latest attempt to set aside those orders is the enactment of this Court’s Federal Court (Criminal Proceedings) Rules 2016 (Cth). No basis, let alone a reasonable basis, is disclosed for considering the enactment of these rules gives Mr Gargan a new argument for the setting aside of the 2004 sequestration orders. Nor does Mr Gargan’s passing reference to an “account in equity” and, indeed, there is no rational connection between the 2016 Rules and any “account in equity”. These matters have been finally determined adversely against Mr Gargan and the Court’s orders stand, and are effective.

26    It would be an abuse of the Court’s processes for Mr Gargan to be permitted to challenge the 2004 sequestration orders again, in the circumstances I have outlined, and on grounds which are without any arguable basis in the terms they are advanced.

27    The application will be dismissed.

Associate:

Dated:    8 June 2018