FEDERAL COURT OF AUSTRALIA

Rubis v Garrett as Trustee of the Andrew Garrett Family Trust Trading as Dynamic Commercial Workforce Solutions (No 2)

[2018] FCA 2011

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent does not hold any security interest, as defined under the Personal Property Securities Act 2009 (Cth) (the Act) entitling him to lodge any financing statement or financing change statement upon the personal property securities register (the Register) alleging or asserting the creation or conferral of any security interest by any of the applicants.

2.    Each of the documents entitled Notice of Crystallisation of Charge/Notice of Seizure of Collateral dated 19 September 2018, Amended Notice of Crystallisation of Charge/Amended Notice of Seizure of Collateral dated 25 September 2018 and Further Amended Notice of Crystallisation of Charge/Further Amended Notice of Seizure of Collateral dated 4 October 2018, signed by the first respondent, and any subsequent amendment or variation thereof, is invalid and of no force or effect.

3.    The first respondent, being an undischarged bankrupt has no right, title or interest to appoint or style himself as managing controller or controller of any of the applicants for any purpose including to register any such appointment or style with the Australian Securities and Investments Commission or any other public body.

4.    Any existing purported appointment of the first respondent as managing controller of any of the applicants is invalid and of no force or effect.

THE COURT ORDERS THAT:

5.    Pursuant to s 182(4) of the Act, the second respondent register forthwith a financing change statement removing from the Register the registration of all purported security interests having registration numbers 201809070092758 and 201308040001375.

6.    The first respondent, by himself, his servants or agents be restrained permanently from registering or causing to be registered upon the Register any further financing statement or financing change statement in respect of any security interest or purported security interest in the personal property of any of the applicants, unless the Court first makes an order permitting him to make a particular registration and the second respondent is satisfied that the Court has made such an order.

7.    If any registration is made on the Register in breach of order 6, the second respondent must remove it forthwith or, if the second respondent is not otherwise aware of that registration, as soon as an applicant gives notice of it.

8.    The first respondent pay the applicants’ costs of the proceeding on an indemnity basis fixed in a lump sum to be determined by a Registrar of the Court in accordance with orders 9 to 11.

9.    On or before 7 December 2018, the applicants file and serve any evidence upon which they propose to rely on the issue of quantification of the lump sum costs to which they are entitled.

10.    On or before 21 December 2018, the first respondent file and serve any evidence upon which he proposes to rely on the issue of quantification of the lump sum for costs, limited (unless the Court first otherwise orders) to no more than 15 pages including annexures.

11.    The Registrar of the Court shall:

(a)    determine the quantum of the lump sum for costs payable pursuant to order 8 above in such manner as he or she deems fit including, if thought appropriate, on the papers; and

(b)    at the conclusion of the quantification process, order that the first respondent is to pay whatever sum has been quantified pursuant to order 11(a) above within 28 days from the date of the order.

12.    The Registrar of the Court refer the papers (including documents that the first respondent sought to lodge but which were rejected for lodgment) to the Commonwealth Director of Public Prosecutions.

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

REASONS FOR JUDGMENT

RARES J:

1    The 24 applicants seek orders against the first respondent, Andrew Garrett, and the second respondent, the Registrar of Personal Property Securities, in relation to the removal of entries in PPSR registration number 201809070092758 (the 2018 registration) that Mr Garrett first caused to be made against 12 of the applicants on 7 September 2018 on the Personal Property Securities Register maintained under the Personal Property Securities Act 2009 (Cth) (the PPS Act). The 2018 registration falsely recorded that each applicant had granted Mr Garrett a security interest over all of their present and after acquired assets. Between 7 September 2018 and 19 October 2018, Mr Garrett falsely added more of the applicants and other persons and bodies to the 2018 registration, including the Federal Court of Australia, as purported grantors of security interests to him, so that a total of 46 false entries occurred.

2    Mr Garrett relied in part on a document that he created entitled “Further Amended Notice of Crystallisation of Charge/Further Amended Notice of Seizure of Collateral”. He updated the original form of that notice, that he dated 19 September 2018, adding progressively more persons and entities as grantors against whom or which he claimed that he held a security interest within the meaning of s 12 of the Act, that was registrable in the Register.

3    The sixth applicant, Manta Wharf Pty Ltd, also seeks removal from the Register of a security interest in registration 201308040001375 (the 2013 registration) that Mr Garrett had agreed on 11 December 2013 to remove when he released, by deed, Manta Wharf from any liability and security interests it may have owed to him, in the circumstances I will explain below.

4    Mr Garrett is a vexatious litigant and is known to be so by the Registrar. Mr Garrett has used the ease of obtaining registrations under the PPS Act, to evade the orders against him commencing litigation, by forcing persons in the position of the applicants to sue him to remove the false registrations of their purported grants to him of security interests, as his means of returning to vex persons in litigation. The Registrar has specific powers to prevent and also to remove of his own motion vexatious registrations, and so to protect the public interest. However, he has not exercised any of those powers in relation to the 2018 registration, despite both his duty to maintain the integrity of the Register and to protect the public from obvious abuses based on his past knowledge and own experience as a respondent in litigation in this Court concerning Mr Garrett’s earlier abuses of the PPS Act.

5    I will describe the relevant provisions of the PPS Act and the way in which each of the applicants came to be involved with Mr Garrett before considering the claims for relief.

The legislative scheme

6    The scheme of the PPS Act is to assist in the notification and enforcement of security interests in personal property. It enables persons who grant or acquire, or intend to grant or acquire, a legal or beneficial interest in personal property (including a security interest) to become aware, by searching the Register, of the existence of prior interests, or newly-created ones, in that personal property. Section 12(1) defines a security interest as meaning: “an interest in personal property provided for by a transaction that, in substance, secures payment or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property)” (emphasis added). And, in s 12(2) there is a list of examples of security interests, each of which involves a dealing to which there are at least two parties, namely, one who creates the security interest in personal property and the other who takes it.

7    Collateral is defined in s 10 as meaning “personal property to which a security interest is attached”, and, in relation to a registration with respect to a security interest, “includes personal property described by the registration (whether or not a security interest is attached to the property)”.

8    The PPS Act exhorts in s 111(1) that all rights, duties and obligations that arise under the enforcement provisions in Ch 4 have to be exercised or discharged honestly and in a commercially reasonable manner. Part 4.3 of the PPS Act deals with the seizure and disposal or retention of collateral. Section 123(1) creates a right of a secured party to seize collateral (including intangible property) by any method permitted by law, if the debtor is in default under the security agreement.

9    Chapter 5 deals with the operation and maintenance of the Register. A person can apply to the Registrar to register a financing statement (defined in s 10 as data registered, or that is to be registered, pursuant to an application for registration under s 150(1)) with respect to a security interest or personal property and to register amendments to any registered financing statement (defined as a financing change statement). Under s 150(3), the Registrar must register a financing statement or financing change statement in accordance with the application, but only if it is in the approved form, any fee has been paid, and, critically, (under s 150(3)(c)(i) and (ii)) the Registrar is not satisfied that the application is frivolous, vexatious or offensive, contrary to the public interest or made in contravention of s 151.

10    A person who applies to register a financing statement or financing change statement that describes collateral is liable, under s 151(1), to a civil penalty, unless the person believes, on reasonable grounds, that the person described in that statement as the secured party is, or will become, a secured party in relation to the collateral, otherwise than by virtue of the registration itself.

11    Next, s 161 provides that personal property may be described in a registration with respect to a security interest before or after a security interest agreement is made covering the property or a security interest attached to it. This enables persons who are about to enter into contracts or transactions under which property will later pass in a legal, beneficial or security interest that will be granted or created, to give notice to prevent the assertion of an interest that is created after such a registration, even though that intermediate interest comes into existence before property passes under the foreshadowing registered financing statement.

12    Relevantly, Pt 5.6 of the PPS Act deals with amendment demands. Section 178(1) provides that a person with an interest, including a security interest, in collateral described in a registration with respect to a security interest, may give a demand in writing, called an amendment demand, to the secured party to register a financing change statement so as to amend the registration as authorised in accordance with the provisions of the table in s 178(1). Item 1 of that table provides that an amendment demand will be authorised if:

No collateral described in the registration secures any obligation (including a payment) owed by a debtor to the secured party.

13    If the Registrar so decides, once data is removed from a registration, it can no longer be made available to persons searching the Register (s 178(2)). Division 2 of Pt 5.6 enables persons who seek amendments to the Register, to do so either by application to the Registrar in an administrative process, under Subdiv A, or to the Court, under Subdiv B. A person who has given an amendment demand may apply to the Court under s 182(1) for an order in relation to it.

14    Importantly, as the guide to Pt 5.7 in s 183 summarises, “[t]he Registrar may remove data in certain situations, for example if its retention is contrary to the public interest”, and s 184(1)(a) provides:

184    Removal of data—general grounds

(1)    The Registrar may (at his or her initiative) register a financing change statement to remove data (including an entire registration) from the register if the Registrar is satisfied that:

(a)    the application to register the data was frivolous or vexatious, the data is offensive, or the retention of the data in the register is contrary to the public interest; (emphasis added)

15    This Court has jurisdiction in any matter arising under the PPS Act by force of s 207 (item (1)). Under s 275, a secured party has an obligation to provide information including “a copy of the security agreement that provides for the security interest” to an “interested person” including a grantor in relation to the collateral in or over which the security interest is granted, if requested by the interested person (s 275(1)(a)).

16    Part 8.6 deals with the onus of proof and knowledge for the purposes of the PPS Act. Relevantly, s 296(a) provides that in any proceeding under the PPS Act, the onus of proving the fact that a security interest attaches to personal property lies with the person asserting that fact (in this case, Mr Garrett).

Some other proceedings involving Mr Garrett

17    On 26 February 2015, Pagone J made orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) declaring that Mr Garrett was a person who had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. The orders prohibited Mr Garrett from instituting in his own name, causing others to institute, or being concerned, either directly or indirectly, in the institution of, any proceedings in any registry of this Court without the leave of the Court.

18    On 15 May 2015, on the petition of the twenty-fourth applicant, Francis Cahill, whose law firm is the twenty-third applicant, Altius Partners Pty Ltd, Mr Garrett was made bankrupt. His trustee lodged an objection to his discharge from bankruptcy, and Mr Garrett is currently not entitled to be discharged until 3 June 2023.

19    On 16 June 2016, Beach J made orders under s 182 of the PPS Act in two separate proceedings so as to cause the removal from the Register of the registration by Mr Garrett and a company he controlled, Oenoviva (UK & Ireland) Pty Ltd (controller appointed), in their own rights and as trustees of various trusts, of purported security interests over National Australia Bank Ltd (NAB), in the first proceeding, and Treasury Wine Estates Vintners Limited, Treasury Wine Estates Limited, Foster’s Group Pty Ltd and Sabmiller Beverage Investments Pty Limited, in the second proceeding. The Registrar was a party to each of those proceedings. In the Treasury Wine proceeding, another company that Mr Garrett controlled, Oenoviva (China) Pty Ltd, was also a respondent in its own capacity and as trustee.

20    Beach J enjoined Mr Garrett and the Oenoviva companies by themselves, their servants and agents from lodging with the Australian Securities and Investments Commission (ASIC) any notice of purported appointment of either Mr Garrett or one of those companies as managing controller of NAB or Treasury Wine or seeking so to act or to be so appointed. Importantly, his Honour ordered the Registrar, as a party to each proceeding, to remove the registrations.

21    His Honour found that Mr Garrett was an undischarged bankrupt and that s 206B(3) of the Corporations Act 2001 (Cth) disqualified a person with that status from managing a corporation. Beach J said that Mr Garrett’s conduct and appointment of himself as “managing controller” of NAB and the plaintiffs in the Treasury Wine proceeding either infringed, or was likely to infringe, s 206A(1)(a) and (b) of that Act: National Australia Bank Ltd v Garrett [2016] FCA 714 at [2]-[3] and [51]; Treasury Wine Estates Vintners Limited v Garrett [2016] FCA 715 at [28]. His Honour noted that other judges of this Court had also made other vexatious litigant orders against Mr Garrett. Indeed, so have the Supreme Court of Victoria (Attorney-General for the State of Victoria v Garrett [2017] VSC 75) and the Supreme Court of South Australia (Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other actions [2007] SASC 173).

Background

22    The present proceeding arises in the following circumstances. On 4 August 2013, Mr Garrett caused the 2013 registration to be made in respect of, among other entities, Manta Wharf.

23    A dispute arose between Mr Garrett and his interests and a number of the present applicants in respect of the 2013 registration. That dispute was the subject of a proceeding in this Court (the 2013 proceeding) and subsequent settlement negotiations that culminated on 11 December 2013, when Mr Garrett entered into a deed of settlement and release on his own behalf and as trustee of the Andrew Garrett Family Trust, as well as on behalf of two companies that he controlled, Dynamic Workforce Solutions Pty Ltd (although a third person signed the deed on its behalf) and Sanctuary Australasia Pty Ltd (collectively the Garrett parties). The other parties to the deed were the first applicant, Robert Rubis, and five companies associated with him, being Manta Wharf, Prospero Group-Burke Road Pty Ltd, the eighth applicant, La Grillade Pty Ltd (now known as Rubis Trading Pty Ltd), the ninth applicant, Wharfside Pty Limited, the tenth applicant, and Manujan Pty Ltd, the eleventh applicant (collectively the Rubis parties).

24    The recitals to the deed recorded that the Rubis parties had commenced the 2013 proceeding against the Garrett parties seeking orders for the removal from the Register of security interests that Mr Garrett had caused to be registered over each of the five corporate Rubis parties, directly or through the Garrett parties, and that each of the parties to the deed had agreed to settle the 2013 proceeding, without admissions, in accordance with the deed’s provisions.

25    Relevantly, the Rubis parties promised to pay the Garrett parties $55,000, including $35,000 on execution of the deed, in consideration of the settlement and releases for which it provided (cl 2.1(a)), and that on execution of the deed, the Garrett parties, including Mr Garrett himself, as “controller”, would provide the Rubis parties with duly executed releases and the details of registration and token numbers needed to discharge the registrations of security interests in the 2013 registration against each of them that Mr Garrett had caused (cl 2.4).

26    On execution of the deed, payment of $35,000, and provision of the releases, details and tokens referred to in cl 2.4, the parties agreed to cause, as occurred, the 2013 proceeding to be discontinued, with each party to bear his or its own costs (cl 2.5). Each of the parties agreed to release the others, and, critically, cll 3.2 and 3.4 provided:

3.2    In consideration of the Rubis Entities agreeing to the terms of this Deed and with effect from the date of this deed, the Garrett Entities, the Controller and the Trustees of the Trust hereby release the Rubis Entities and all of the business assets and undertakings of the Manta Wharf, Vicinity and La Grillade Restaurants from all causes of action, claims and demands or losses of any nature and rights whatsoever which the Garrett Entities, or any entities which they are related to or control, may have against the Rubis Entities arising out of or in connection with the Dispute, the subject matter of the Dispute or Proceedings, the estate of Chris James (including any purported entitlements which may exist in respect of any asset of his estate) or any other matter fact or thing which subsists, and whether known or unknown as at the date of this deed, in connection the trade, assets or undertakings of the Manta Wharf, Vicinity and La Grillade Restaurants, including without limitation during the periods that such restaurants were operated by entities other than the Rubis Entities.

3.3    This Deed may be pleaded in bar to any action or further proceeding that may at any time be commenced by either party in relation to any matter the subject of this Deed, save for any action taken by the Garrett Entities in accordance with 2.6.

3.4    In further consideration of the Rubis Entities agreeing to the terms of this deed and with effect from the date of this deed, the Garrett Entities hereby agree not to, whether directly or indirectly, agitate upon any issue or provide funding to the liquidators of any companies now in liquidation which previously had an involvement in the trade, assets and undertakings of the Manta Wharf, Vicinity and La Grillade Restaurants, including without limitation Prospero Trading Pty Limited (In Liquidation) and ACN 122 281 574 Pty Limited (In Liquidation) ACN 122 281 574 (formerly known as La Grillade Pty Limited). (emphasis added)

27    However, despite his covenant to do so, it appears that Mr Garrett did not provide the token to discharge the 2013 registration in respect of Manta Wharf, which remains registered.

28    Brenton Yates, the sixteenth applicant, is a principal in the law firm Yates Law Pty Ltd, trading as Yates Law, the thirteenth applicant. In 2013, Mr Yates had been director of the twelfth applicant, that previously traded as Yates Beaggi Lawyers, together with the seventeenth applicant, Farshad Amirbeaggi. The twelfth applicant, the fifteenth applicant, and the eighteenth applicant are now all associated with Mr Amirbeaggi.

29    On 16 August 2018, Mr Yates wrote to Mr Garrett seeking his cooperation to remove the 2013 registration in respect of Manta Wharf. After receiving no reply, Mr Yates sent a reminder email on 21 August 2018. On 1 September 2018 Mr Garrett replied. He refused to cooperate, and instead alleged that Mr Rubis had acted in a way that entitled Mr Garrett to apply to the Court to set the deed aside, and then have himself reinstated as “managing controller” of the five corporate Rubis parties. He offered, as an alternative, that Mr Rubis and his father (who had been the nineteenth applicant but passed away on about 29 September 2018 and whose estate Mr Rubis has been appointed to represent for the purposes of the proceeding), could cause all of the companies that they controlled to hand over all their assets to Mr Garrett “in my trustee capacity”. Needless to say that invitation was not taken up.

30    On 5 September 2018, Mr Yates emailed an amendment demand to Mr Garrett pursuant to s 178 of the PPS Act. The amendment demand relied on the provisions of the deed to demand that Mr Garrett register a financing change statement to remove the 2013 registration because there was no collateral to which any security interest was attached.

31    On 6 September 2018, Mr Garrett replied refusing to do so, and asked instead for the Rubis parties to consent to the registration of an amendment, in effect, to undo the releases and settlement evidenced in the deed.

32    On 7 September 2018, Mr Garrett caused the initial form of the 2018 registration to be created in the Register.

33    On 12 September 2018, Mr Garrett emailed Mr Yates informing him of the 2018 registration and the fact that Mr Garrett had included Yates Law as one of the grantors. Later that day, Mr Yates sought more information from Mr Garrett about what he had done.

34    On 19 September 2018, Mr Garrett created the first version of the notice and emailed a copy of it to Mr Yates. The wording of the notice evolved through two amendments to the current form of the further amended notice (to which I will refer to as “the notice”). The first amendment was dated 25 September 2018, and the final, disclosed version of it was dated 4 October 2018. The notice asserted that numerous of the applicants had granted security interests to him over all of their assets and undertakings, including “Registrations and Rights to act as a Solicitor and or an Accountant”. I referred to some of this document in my earlier reasons: Rubis v Garrett as Trustee of the Andrew Garrett Family Trust, trading as Dynamic Commercial Workforce Solutions [2018] FCA 1760.

35    On 20 September 2018, Mr Garrett caused the 2018 registration to be amended to include as grantors Mr Rubis and Mr Yates, and two of Mr Rubis’ other companies, The Truffle Group Pty Limited and Prospero Trading Pty Ltd (in liquidation) (controller appointed). The liquidators of Prospero are Brent Kijurina and Richard Albarran of Hall Chadwick (NSW) Pty Ltd, who are the twenty-first, twenty-second and twentieth applicants respectively. They came to be added to the 2018 registration on 19 October 2018 together with Mr Cahill and Altius.

36    On 25 September 2018, Mr Garrett caused Mr Amirbeaggi and a company associated with him, Financial Pty Limited, the fifteenth applicant, to be added to the 2018 registration.

37    On 2 October 2018, the then applicants commenced this proceeding urgently. Jagot J made orders for short service and stood the proceeding over to a date to be notified.

38    Next, on 4 October 2018, Mr Garrett added yet more alleged grantors, Manujan and other companies associated with Mr Amirbeaggi, the twelfth and eighteenth applicants.

39    On 11 October 2018, Thawley J granted injunctive relief against Mr Garrett by consent, restraining him from making further registrations in respect of the then applicants and appointing Mr Rubis as the representative of his late father’s estate (who had been the nineteenth applicant), for the purposes of the proceeding.

40    On 14 October 2018, Mr Garrett began the first of his many attempts to seek leave or otherwise to commence some form of proceeding by way of cross-claim, by lodging for filing an interlocutory application that sought, among others, an order that Thawley J be joined as a party to this proceeding. That demonstrated in no uncertain terms why he is a vexatious litigant.

41    Next, on 16 October 2018, Mr Garrett sought to obtain orders joining the Court, the Chief Justice, ASIC, the Law Society of New South Wales and the Legal Services Commissioner of New South Wales as parties to the proceeding, claims that were transparently baseless. Then, on 17 October 2018, he wrote a 20-page letter addressed to the Chief Justice and the following day sought to invoke the Court’s processes to obtain freezing orders against the then applicants (being the first to nineteenth applicants). He also lodged an incoherent document entitled “statement of grounds for common law judicial review and making of orders in the nature of “quo warranto” and/or “habeas corpus” and/or “prohibition” and/or “mandamus” and/or “certiorari””.

42    Mr Garrett continued to bombard the Court with large numbers of applications to join parties, or bring a proceeding or cross-claim, and he also made numerous other complaints. He sought to file thousands upon thousands of pages of material that had no discernible or legitimate forensic purpose. He also filed numerous documents that purported to be notices under s 78B of the Judiciary Act 1903 (Cth), that made equally nonsensical and baseless claims. Among others of his claims, as I described in my earlier reasons, he sought to join justices of the High Court and have their decision on appeal somehow judicially reviewed by this Court; a course that was, of course, legally unsustainable and calculated deliberately to cause vexation and a waste of the parties’ and the Court’s time and resources. He copied in the applicants’ solicitors to emails to the Court attaching this material, causing (as he intended), no doubt, a further degree of vexation.

43    The matter was docketed to me at about this time. On 2 November 2018, I held a case management hearing at which the then applicants announced that they wished to join as additional applicants the twentieth to twenty-fourth applicants, namely the liquidators, their firm, Mr Cahill and his firm. Mr Garrett said he was not prepared to deal with that application at that time and said that he wished to consider his position at an interlocutory hearing, which I set down for 8 November 2018.

44    As at 7 November 2018, the 2018 registration recorded a total of 46 grantors. However, the Registrar was unable to find a name for one of those, in respect of which Mr Garrett had used an Australian company number or ACN to support his claim that it had granted him a security interest. Thus, although the 2018 registration appears to include 46 grantors, it may include only 45.

45    On 8 November 2018, after an interlocutory hearing, I made the orders for joinder and granted the applicants leave to amend the originating application. I also extended the injunctive relief granted previously to prevent further registrations in respect of the newly joined applicants: Rubis [2018] FCA 1760. I also rejected Mr Garrett’s first application that I recuse myself for bias on the ground, among others, that the Court was a grantor of a security interest that he had registered as part of the 2018 registration. He asserted that this male fide entry in the Register somehow demonstrated that all of the judges of this Court had a financial interest in respect of the subject matter of the proceeding. I will say something in due course about the fact that the Registrar allowed such an obviously baseless and vexatious registration in respect of this Court to occur, notwithstanding his duties and powers under ss 150(3)(c)(i) and 184(1)(a) of the PPS Act, reflecting his duty to protect the public interest and the integrity of the Register, to prevent and or cause its removal of his own motion.

46    Also on 8 November 2018, I stood the proceeding over for case management to 27 November 2018 and ordered as follows:

5.     The first respondent file electronically and serve, and provide a hard copy printed double-sided to the Court in Sydney, an affidavit paginated consecutively annexing only the transaction document or documents and no other material, by reference to which the first respondent claims that each applicant respectively entered into a transaction securing payment or performance of an obligation so as to create the security interest (within the meaning of s 12 of the Personal Property Securities Act 2009 (Cth)), that the first respondent relies on in support of the registration No 201809070092758 of the security interest against each applicant referred to in paragraph 2 of the amended originating application, on or before 16 November 2018.

47    On 27 November 2018, I raised with Mr Garrett the question as to why he had lodged for filing an affidavit dated 21 November 2018 headed “Pursuant to s37AR of the Federal Court of Australia Act 1976 (Cth) & orders Rares J dated 8 November 2018” together with an interlocutory application dated 23 November 2018 seeking leave to file a proceeding as a cross-claim or counter-claim against 273 parties, including, to name but a few, her Majesty the Queen, as the two hundred and fifty first cross-respondent, using the description “Regina”; the High Court of Australia; all of the Members and Senators of the Commonwealth Parliament; this Court; the Chief Justice and other judges of the Court, including myself; together with a number of law societies and statutory legal profession regulatory bodies, some of whom are now among the 46 alleged grantors in the 2018 registration. I refused to allow the interlocutory application be filed because it was not made in accordance with order 5 made on 8 November 2018.

48    On 27 November 2018, I set the trial of the proceeding down for hearing today, having discussed with Mr Garrett the state of the evidence and what would be before me at the hearing. I directed the applicants to file and serve written submissions in support of their claims for final relief, limited to five pages, on or before 28 November 2018. They defaulted by one day in compliance with that order because they did not serve such submissions on Mr Garrett until yesterday. I also directed Mr Garrett to show cause today by filing an affidavit limited to five pages, including annexures, and no more, on or before 29 November 2018, why he should not be restrained permanently from filing, or seeking to file, in the proceeding any further document, including but not limited to, any interlocutory application or notice under s 78B of the Judiciary Act raising in any way, or in any way relating to, any of the matters the subject of, or referred to in, his interlocutory application dated 23 November 2018, that I had rejected. I also directed him to file and serve any written submissions in opposition to the relief sought in the amended originating application, limited to five pages, on or before 29 November 2018.

49    Mr Garrett did not file any affidavit or submissions after 27 November 2018. I conducted the hearing during the morning session today, as I had previously, by video link to Hobart. The matter was called both in Sydney and in Hobart outside the Court, but Mr Garrett did not appear. I was informed from the bar table, that he had been in communication by email with, among others, Mr Yates and the New South Wales District Registry of this Court during the course of this morning’s hearing. I am satisfied that Mr Garrett is fully aware of the hearing today, he having been present in Court when I made the orders for today’s hearing on 27 November 2018.

The basis of Mr Garrett’s claim

50    Crucially, the security interest that Mr Garrett asserted that he had in the latest version of the notice in evidence, dated 4 October 2018 (that stated that it had retrospective effect from 19 September 2018), was as follows:

AND WHEREAS, as a consequence of the Fraud, breaches of Australian Consumer Law, unconscionable conduct of Rubis, entities related to him, Yates, Amirbeaggi and Vlahos and breach of the First Settlement Agreement the Grantee/Chargee was suborned into executing a Settlement Agreement dated 11th December 2013 as a consequence of the need to pay staff, expenses and Holiday Pay for the Xmas Period in the amount of $55,000 and $18,000 in kind,

AND WHEREAS, subsequent to review of the applicable law relating to trusts and the extended reach of security interests registered and otherwise under the provisions of the Personal Property Security Act 2009 (Cth), the Grantee/Chargee has realised that;

1. The aforementioned security interests and charges continued unaffected by the execution of the Second Deed of Settlement in circumstances of Fraud and the partial performance of the First Deed of Settlement by Rubis,

2. the Second Deed of Settlement was able to be set aside as the Chargee/Grantee relied on disclosures from the Chargors/Grantors that were false, misleading deceptive and were a Fraud, which under the relevant law also engaged the liability of Beaggi, Yates and Vlahos as the Professional Advisors to Rubis and Related Entities,

AND WHEREAS, in the intervening period the Chargee/Grantee has kept the Chargors/Grantees on Notice of his rights to continuation of the security interests as remaining unaffected despite removal of Data and set aside the Deed of Settlement and restore the Data associated with the aforementioned PPSR registrations however has been unable to do so as a consequence of lack of funds availability to this date,

… (emphasis added) (errors in original)

Consideration

51    Each of the individual applicants has sworn or provided direct evidence, or other evidence in the cases of Messrs Albarran, Cahill and Vlahos that I admitted pursuant to s 64 of the Evidence Act 1975 (Cth), that he and each company associated with him was not aware of, and did not owe, any money or liability, of whatever nature, to Mr Garrett and that the purported security interest which the 2018 registration asserted that the respective applicant had granted, had not in fact occurred.

52    I am satisfied that the deed expressly removed the foundation for the 2013 registration and that Mr Garrett was in breach of his obligation to cause the token and registration details to be available to the Rubis parties to enable Manta Wharf to remove that registration.

53    On the evidence, the only basis for Mr Garrett’s registration in the 2018 registration of the 46 persons and entities as grantors of the alleged security interests that he claimed in the notice was his purported claim of a mere equity to apply to a court to set aside the deed, including the releases that the Garrett parties gave in cl 2.4.

54    That assertion of a mere equity was incapable as a matter of law of creating any legal, equitable or security interest in the property of any of the applicants who were named in the notice in the version as at 4 October 2018. And, to the extent that the notice may have been used in support of the registration, as grantors, of the balance of the 46 persons and entities (because of the connection through the 2018 registration’s number) of whatever interest he might have asserted against them in that or any other document that Mr Garrett may have created, it is clear that his claim is nothing more than a mere equity.

55    In Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) Pty Limited (1974) 131 CLR 321 at 328, McTiernan, Menzies and Mason JJ held that a partnership interest constituted an interest in property being “…an equitable interest and is not a mere equity to set aside or rectify a transaction by means of a court order (see Latec Investments Ltd. v Hotel Terrigal Pty Ltd. [(1965) 113 CLR 265])”.

56    On 2 November 2018, I raised with Mr Garrett, in the case management hearing, that the claim to a security interest that he was seeking to raise in the notice appeared to be a mere equity and did not support the 2018 registration. The evidence now before me, including Mr Garrett’s emails to which I have referred, and the form of the notice itself, confirms that he had no legal or equitable right or interest in any property of the applicants at all, let alone a right or interest capable of conferring on him a security interest necessary to entitle him to make the 2018 registration or to maintain, after the deed, the 2013 registration.

57    Moreover, Mr Garrett had no present right to assert such a claim because he needed first to obtain leave from the Court to bring a proceeding to set aside the deed, under s 37AR of the Federal Court Act. He has not obtained such leave and, to the extent that any such claim is encompassed in the proceeding in his proposed interlocutory application dated 23 November 2018 or in his affidavit made on 21 November 2018, I have refused him leave to bring that proceeding. Mr Garrett included most, if not all, of the balance of 46 persons and entities included in the 2018 registration as proposed cross-respondents in that proposed proceeding.

58    Mr Garrett expanded from time to time the scope of the 2018 registration to add various of the applicants and other persons and entities, based, I infer, on his assertion of the mere equity. It is safe to infer that each of Mr Garrett’s claims that each of the 46 alleged grantors granted him a security interest is without foundation for two reasons: first, he added all of them to the 2018 registration so as to suggest a connection between each of the alleged grantors; and, secondly, he had the onus of establishing, under s 296(a) of the PPS Act, that he had a security interest in the personal property of each alleged grantor and has not done so. For example, there is, of course, not a skerrick of evidence to suggest that this Court has ever granted Mr Garrett a security interest over the whole of its property or that it could, much less would, have entered into a transaction in favour of a person who was currently a party to contested litigation before it and whom it had made a vexatious litigant over three years earlier.

59    For the reasons above, Mr Garrett’s assertion that he had a right to take proceedings in a court to have the deed set aside so that he or the Garrett entities could be restored to whatever alleged interest, if any, that he or they may have had in property owned by the Rubis parties prior to entry into the deed on 11 December 2013, could amount to no more than a mere equity. Those claims had been extinguished by the accord and satisfaction in the deed and the releases in cl 2.4. The claims that Mr Garrett or the Garrett entities sought to assert in the notice could not have amounted to a legal, equitable or any kind of security interest in any of the personal property of any of the applicants.

60    The notice as amended to 4 October 2018 disclosed no security interest at all and cannot support the 2018 registration of any of the applicants as grantors of a security interest claimed by Mr Garrett.

Should the Registrar have acted under s 184(1)(a) of the PPS Act?

61    Each of the 24 applicants and the other persons named as grantors in the 2018 registration has been exposed to a claim that the Registrar allowed Mr Garrett to register and affect them.

62    In his submissions, the Registrar said that persons who sought removal of data or entries from the Register had a binary choice, by making an application to remove the registration either in an administrative proceeding under s 180 or in a proceeding in a court under s 182. That submission did not take account of the Registrar’s public function under ss 150(3)(c)(i) and 184(1)(a) of protecting the integrity of the Register and the public from vexatious registrations such as those effected by Mr Garrett the subject of this proceeding.

63    The Courts have similar power to dismiss vexatious and frivolous proceedings as an abuse of process. Such powers enable the Courts to protect in the interests of the administration of justice, among others, not only the institution of the Court itself, but the public and litigants who may be harassed by vexatious litigants such as Mr Garrett.

64    Nothing in the Act requires that the Registrar be provided with transaction or other documents pursuant to which a person claiming to be a secured party seeks to have registered the fact that a grantor has made a grant of a security interest. Accordingly, the scope for the Registrar to act under a provision such as ss 150(3)(c)(i) or 184(1)(a) of the PPS Act is constrained to situations in which abuses of the registration regime are evident.

65    A vexatious or frivolous registration of the grant of a security interest by an individual, firm, corporation or entity can cause the alleged grantor considerable damage or inconvenience. Here, the Registrar knew of Mr Garrett’s tendency to abuse the registration system under the PPS Act, because the Registrar was aware:

    of his Honour’s reasons for judgment and was bound by his Honour’s orders as a respondent in the two proceedings before Beach J;

    Mr Garrett was an undischarged bankrupt at least because of those proceedings; and

    Mr Garrett was a vexatious litigant.

66    Despite the Registrar being aware of those matters, he allowed Mr Garrett to register, and then maintain, on the Register the recording that 46 persons or bodies were grantors to him, pursuant to the 2018 registration. That registration does not appear to have had any basis other than Mr Garrett’s purposes to ensure that he caused annoyance to the persons or bodies that he falsely claimed were grantors of security interests and to cause at least one of the grantors to bring him back into the forensic arena as a respondent, when such a grantor sought to remove the 2013 or 2018 registrations.

67    Here, the Registrar had a duty under s 150(3)(c)(i) to register each grantor on Mr Garrett’s application only if the Registrar was not satisfied that the application was “frivolous, vexatious… or contrary to the public interest”.

68    It is inconceivable how the Registrar, properly performing his functions, could not have been satisfied that Mr Garrett’s application, for example, in respect of the Federal Court of Australia was frivolous, vexatious and contrary to the public interest. Yet, that registration was made and registered on 19 October 2018, after this proceeding had commenced and when the Registrar was the second respondent in it. The Court, as an institution, is part of the judicial arm of the nation’s government. The Registrar knew that Mr Garrett was a vexatious litigant and a bankrupt. It is difficult to comprehend how the Registrar could have been satisfied under s 150(3)(c)(i) that the Court could possibly have granted Mr Garrett a security interest over all of its assets throughout the Commonwealth when he was a litigant in this proceeding.

69    In addition, the Registrar simultaneously registered, as grantors, the New South Wales Department of Justice, the Victorian and New South Wales Legal Services Commissioners and the Law Societies of New South Wales and South Australia. Those registrations should never have been allowed to occur. The mere fact that this extraordinary collection of public and professional institutions and bodies, together, had supposedly entered into transactions granting Mr Garrett security interests over all of their assets should have set alarm bells ringing in the Registrar’s office. The asserted claims were obviously vexatious, frivolous and their registration contrary to the public interest, yet the Registrar recorded them in breach of his duty under s 150(3)(c)(i). The Registrar should not let this situation occur again.

70    In addition, the Registrar had power of his own initiative to register, under s 184(1)(a), a financing change statement to remove data, including an entire registration, if he were satisfied that the application to register the data was frivolous, vexatious or that the retention of the data in the Register is contrary to the public interest.

71    Registration of such interests is capable of causing a person falsely registered as a grantor of a security interest considerable damage. Mr Garrett used the registration processes under the PPS Act both in the proceedings before Beach J and this proceeding to cause persons, whose legal rights and interests in their property were affected by Mr Garrett’s false assertion that each of those persons had been a grantor of a security interest over his, her or its property, to bring proceedings against him to remove the false registrations. Mr Garrett used his baseless registrations under the PPS Act to establish a spring board on which he would be joined as a respondent to Court proceedings without his having to obtain leave to bring such proceedings under s 37AR of the Federal Court Act. That scheme was an abuse of the Court’s process. His conduct throughout this proceeding has been vexatious and calculated to cause the applicants, the Court and the other persons and bodies whom he falsely included in the 2018 registration, expense and annoyance.

72    Indeed, he went as far, during earlier case management hearings, to assert that he did not need leave to bring a cross-claim in this proceeding because he was a party. That was wrong. A cross-claim is a proceeding. And, at least the protective purpose of the orders under s 37AO of the Federal Court Act, restricting Mr Garrett from using the Court’s processes, operated effectively to prevent him vexing the 273 cross-respondents whom he proposed to join.

Conclusion

73    For the reasons above the applicants are entitled to the relief that they seek to have the Registrar forthwith cause the 2013 and 2018 registrations to be removed from the Register.

74    Initially, the applicants did not apply for an order that would have the effect of removing from registrations on ASIC registers a notation or suggestion that a controller had been appointed to the corporate applicants. That relief was sought and granted in the proceedings before Beach J. However, I permitted the applicants today to seek such an order in consequence of the 2018 registration entries being made on the Register based on the fact that first, such registrations on ASIC registers ought never to have been made and had no legitimate basis and secondly, Mr Garrett, as an undischarged bankrupt, cannot be a controller, as Beach J held. It is appropriate to make a declaration that the applicants can use to cause ASIC to remove any registrations on its registers caused by the invalid 2013 and 2018 registrations.

75    In my opinion, it is also appropriate to order that Mr Garrett pay the costs of the proceeding on an indemnity basis and that a Registrar of the Court be given power to fix a lump sum for those costs without having to proceed to a taxation.

76    Finally, as I have explained above, Mr Garrett obtained the registration of security interests against the Court and others (like the legal profession regulatory bodies) under the 2018 registration by making representations to the Registrar that he was a secured party in relation to the collateral of the respective alleged grantors, including the Court, when he knew that he was not a secured party at all. That conduct may have been criminal. His actions in procuring the 2018 registration have had impacts on the various applicants (causing them to engage in this litigation and incur, no doubt, considerable expense), as well as on other persons and public bodies. These are matters which should be considered by the Commonwealth Director of Public Prosecutions, after investigation by an appropriate investigatory agency. I will order referral of the papers to the Commonwealth Director of Public Prosecutions, but will leave it to a Registrar of the Court to arrange with an appropriate investigatory agency to carry out the necessary investigations.

Associate:

Dated:    13 December 2018