Federal Court of Australia

Australian Prudential Regulation Authority v Garrett [2023] FCA 956

ORDERS

THE COURT ORDERS THAT:

1.    In these orders:

“purported bank” means the “Dynamic Capital Bank”, “Banca di Como”, “Banque de Capital Dynamique”, any derivation thereof, or any other body, whether incorporated or not, described as a “bank” which body:

(a)    does not have the consent of the applicant under s 66 of the Banking Act 1959 (Cth) (Banking Act); or

(b)    is not in possession of an authority under s 9 of the Banking Act to carry on banking business; or

(c)    is not otherwise the subject of an order by the applicant pursuant to s 11 of the Banking Act that determines that s 66(1) of the Banking Act does not apply.

2.    The respondent be permanently restrained under s 65A of the Banking Act, whether by himself, his servants or agents or otherwise, from orally or in any written or electronic form:

(a)    carrying on any banking business in Australia in contravention of s 7 of the Banking Act;

(b)    assuming or using the words “bank”, “banker”, “banking”, “banca”, “banque” or any words or phrases of like import (whether or not in English) in relation to any purported bank, business or purported business in contravention of s 66 of the Banking Act; and

(c)    advertising, representing or stating that any purported bank, business or purported business will carry on banking business.

3.    The respondent be permanently restrained under s 23 of the Federal Court of Australia Act 1976 (Cth), whether by himself, his servants or agents or otherwise, from carrying on any activities incidental to carrying on a “banking business” as defined s 5 of the Banking Act, including but not limited to, issuing any bill or note for the payment of money payable to bearer on demand and intended for circulation, or which purports to be a bill or note for the payment of money payable to bearer on demand and intended for circulation, in contravention of s 44 of the Reserve Bank Act 1959 (Cth).

4.    The respondent pay the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an application brought by the Australian Prudential Regulation Authority (APRA) concerning a claim that the respondent, Mr Andrew Morton Garrett, is unlawfully conducting a “banking business” in contravention of the Banking Act 1959 (Cth) (Banking Act).

2    Mr Garrett is a former Australian winemaker. He is also a vexatious litigant, being the subject of an order of this Court made in 2015, pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which has not expired: see Garrett v Commissioner of Taxation [2015] FCA 117; (2015) 147 ALD 342 (at 371–372 [35] per Pagone J). In litigation spanning nearly two decades, Mr Garrett has commenced (or has been the subject of) various proceedings which broadly relate to his decision to divest himself of his former winemaking business: see, for example, Rubis v Garrett as Trustee of the Andrew Garrett Family Trust Trading as Dynamic Commercial Workforce Solutions [2018] FCA 1760 (Rares J); Garrett v Make Wine Pty Ltd [2014] FCA 1258 (Mortimer J); Garrett, as Trustee for the Garrett Family Trust [2009] FCA 252 (Gilmour J); Garrett v Foster’s Wine Estates Limited [2007] FCA 253 (Finn J); Garrett v Tseng [2007] FCA 93 (Lander J).

3    Although Mr Garrett today is a respondent, this proceeding is the latest iteration of this broader litigious saga. APRA seeks, in summary, final relief under s 65A of the Banking Act and s 23 of the FCA Act to enjoin Mr Garrett from carrying on a banking business.

4    I will address the relief sought by APRA in detail later in these reasons, but first, it is worthwhile setting out some background.

5    The balance of these reasons is organised under the following headings:

B    BACKGROUND

C    PROCEDURAL HISTORY

D    A PRELIMINARY ISSUE AS TO SERVICE

E    THE APPLICATION

F    THE RELEVANT LAW

G    MR GARRETT’S CONTENTIONS

H    CONSIDERATION

I    CONCLUSION AND ORDERS

B    BACKGROUND

6    The background facts are set out in an affidavit affirmed by Mr Christopher Alexander Sheehan dated 18 July 2023 (Sheehan Affidavit) and an affidavit sworn by Mr Nicholas Hugh Palmer on the same date (Palmer Affidavit). What follows is largely drawn from those affidavits and matters summarised in APRA’s concise statement.

7    Also relevant, however, is a barrage of emails sent by Mr Garrett to APRA and other individuals and entities, copied to my Associate, a bundle of which was marked Exhibit A on the application. I will say something first about that correspondence, before turning to the relevant entities the subject of APRA’s application for final relief today.

B.1    Mr Garrett

8    Since the commencement of this proceeding in July 2023, Mr Garrett has sent a number of emails to APRA, copying my Associate and, incidentally, almost every other email address associated with this Court and a miscellany of other email addresses. In those emails, Mr Garrett styles himself as the:

GLOBAL LICENSOR OF DISCRETIONARY PUBLIC POWERS, GLOBAL MANAGING DIRECTOR, GLOBAL MANAGING TRUSTEE; CHAIRMAN OF BOARD OF TRUSTEES CROWN ATTORNEY GENERAL, TRUSTEE IN BANKRUPTCY, LIQUIDATOR, MANAGING CONTROLLER

9    As best I understand it, it is in this capacity that Mr Garrett claims to be the personal repository of all public powers in the Commonwealth of Nations. In a letter attached to an email sent to my Associate in July (which appears to have been filed in proceedings commenced in the United States District Court in Colorado), Mr Garrett claims, among other things, that:

I am the Managing Controller and Liquidator appointed to the Crown (Liquidator and Managing Controller Appointed), Globally, as well as holding Hereditary Public Office as Crown Attorney General appointed to the Commonwealth of Nations.

…

I am a person exercising hereditary discretionary public powers conferred under THE EIGHT ENACTMENTS and Hold s61 of the Commonwealth of Australia Constitution Act 1900 (UK), the assets of THE CEST TUI QUE VIE TRUST, THE NORTH AMERICA PROPERTY TRUST, THE AUSTRALIA PROPERTY TRUST, THE UNITED KINGDOM & IRELAND PROPERTY TRUST, THE INDIA PROPERTY TRUST, THE AFRICAS PROPRTY TRUST, THE CANADA PROPERTY TRUST, THE NEW ZEALAND PROPERTY TRUST, THE REMAINING BRITISH EMPIRE DOMINIONS PROPERTY TRUSTS and all treaties executed between Members of the Commonwealth of Nations as personal property.

10    In exercising these purported powers, Mr Garrett is said to have placed various government bodies (including this Court) into liquidation. He also claims to have placed various former and current Judges of this Court (including myself) into bankruptcy. He also seeks the extradition of the same judges to, and their imprisonment in, the People’s Republic of China (although Mr Garrett now apparently favours, for reasons that are not pellucid, Siberia or Outer Mongolia). This is illustrated in two emails copied to my Associate, the first in July:

Dear Mesdames et Messieurs

The proliferation of Numbnuts as a result of failure to exercise discretionary public powers conferred under enactments in the Public Interest beggars belief.

The Public Trust in Australia has been betrayed by all three branches of Government and most particularly by the Australian Judiciary; AUSTRALIA IS POORLY SERVED BY THE ACTING JUDICIARY, ACTING ATTORNEYS GENERAL, ACTING SOLICITORS GENERAL, ACTING GOVERNORS, PARLIAMENTARIANS, COMMITTEES ETC.

I have named 671 Convicted persons and entities in the Hong Kong Proceedings which will no doubt become much larges on completion of disclosure of all materials facts in accordance with the Crown Common Law Model Litigant Obligations for Continuous Full Disclosure.

THE FINDINGS OF MORTIMER IN 2014 (as attached) ARE CRIMINAL …….is this the best you can do as Chief Justice………….the only Justice who shows any sense of balance is Logan J………..The above and particularly Charlesworth, White, Kenney, Beach, Middleton, Davey, Pagone and all of the South Australian and High Court Judiciary should be extradited and incarcerated in accordance with the Mandatory Life Sentence applicable under South Australian Law.

I am content to fund the building of the Prison in China.

11    And the second in early August:

12    As will already be evident, Mr Garrett’s claims are not legally compelling. Indeed, to borrow an expression from a case involving claims not dissimilar to those in the present case, they resemble a “jumble of gobbledygook”: see Bradley v The Queen [2020] QCA 252 (Sofronoff P, with whom Mullins JA and Boddice J agreed). This is self-evident and I do not propose to waste time dealing with the allegation I am a bankrupt, nor explain why I consider the better view is that I should not be imprisoned in Outer Mongolia or some such place.

13    As will be seen, the claims made by Mr Garrett in the correspondence above broadly underpin his contentions in relation to the entities the subject of this proceeding.

B.2    APRA

14    APRA is an independent statutory authority that supervises institutions across the banking, insurance and superannuation industries. It is tasked with promoting the stability of the financial system in Australia and is constituted under the Australian Prudential Regulation Authority Act 1998 (Cth).

15    APRA is responsible for establishing and enforcing prudential standards and practices designed to ensure that, under all reasonable circumstances, financial promises made by banks and other entities it supervises are met within a stable, efficient and competitive financial system.

16    Authorised deposit-taking institutions (ADIs) are entities that have been granted authority under the Banking Act by APRA to carry on a banking business in Australia. They are regulated by APRA in accordance with the Banking Act, and are listed in APRA’s register of ADIs (ADI Register).

17    Given the importance that ADIs play in the provision of financial services to the community, as well as their role in the broader economy, ADIs are subject to strict standards, including being subject to, among other things, a prudential framework intended to manage the risks of banking activities and ongoing supervision by APRA.

B.3    Relevant Entities

18    Mr Garrett is associated with various non-legal entities, including “Dynamic Capital Bank” (DCB), “Banca di Como”, and “Banque de Capital Dynamique” (together, relevant entities), which he seeks to register as business names: Sheehan Affidavit (at [24]).

19    APRA contends it is these “entities” through which Mr Garrett is conducting a “banking business” without proper authorisation, in contravention of the Banking Act.

20    Mr Garrett purports to be, among other things, the Chief Executive Officer of DCB. The DCB website (https://www.dynamiccapitalbank.capital) (DCB website) lists various Australian office locations, with its head office purportedly located at the Reserve Bank Building, 111 Macquarie Street, Hobart, Tasmania 7000.

21    As of today, the DCB website is operational and contains the following information under the “About” tab:

A Private Investment and Trading Bank with Global reach under a Banking License granted by the Crown Attorney General ("the CAG") acting for the Liquidator and Managing Controller Appointed to the Liquidator and Managing Controller Appointed) Crown Globally and the Secretariat of the Commonwealth of Nations (Liquidator and Managing Controller Appointed).

The Bank is pursuing the development of representative offices through a licensee network in every State. Territory, Province and Nation of the Member Nations of the United Nations and the Commonwealth of Nations.

(Emphasis added).

22    The entities “Banca di Como” and “Banque de Capital Dynamique” associated with Mr Garrett do not have websites.

23    In November 2022, APRA received an email from Mr Garrett seeking authorisation to use the restricted word “Bank” in respect of the relevant entities.

24    Since that date, APRA has conducted a number of Australian Securities and Investments Commission (ASIC) and “ABN look up” searches of the relevant entities, which, as at 18 July 2023, returned no results.

25    Based on the entries on the ADI Register on the same date, none of the relevant entities are regulated entities as they are not authorised or licensed by APRA to carry on a banking business under the Banking Act: Sheehan Affidavit (at [26]).

C    PROCEDURAL HISTORY

26    In July 2023, APRA commenced these proceedings by filing an originating application and a concise statement. The proceeding was allocated to my docket and I listed the return of APRA’s interlocutory application (by which it sought interim injunctive relief) on 26 July 2023.

27    Mr Garrett did not appear at the interlocutory hearing, instead raising various complaints with respect to service in the days leading up to the hearing by email (to which I will return presently). On the evening before the hearing, Mr Garrett sent the following email to my Associate:

Dear Ms Associate Lee

I confirm receipt of an email today from a Mr Welsh purporting to act for APRA (Liquidator and Managing Controller Appointed) and have been advised by Mr Welsh of a press release sent out today (copy attached)

Please note below a copy of my email to Ms Lucinda McCann, General Counsel which raises a number of issues.

I advise you that I am recovering from surgery and currently am fitted with a drain and not able to attend court in any way shape or form………APRA must know this Notice to Agent is Notice to Principal and Vice Versa.

…

28    As I remarked at the interlocutory hearing to Ms Foda, counsel for APRA, given that APRA had not taken steps to seek interlocutory relief prior to July 2023 (notwithstanding that it possessed knowledge of the matters the subject of the proceeding since at least November 2022), I considered that the overarching purpose would be best served by setting the matter down for final hearing as soon as practicable.

29    This was done, and the matter was set down for final hearing in August 2023.

D    A PRELIMINARY ISSUE AS TO SERVICE

30    Before turning to the substantive application, it is necessary to address some complaints made by Mr Garrett with respect to service of the originating documents.

31    Rule 8.06 of the Federal Court Rules 2011 (Cth) (FCR) requires that an applicant personally serve an originating application (and each other document required to accompany the application by FCR 8.05 or any other rule of the Court) on each respondent as soon as practicable and at least five days before the return date of the application.

32    Rule 10.01 provides that a document that is to be served personally on an individual must be served by leaving the document with the individual.

33    At 6:50pm on 25 July 2023, Mr Garrett sent an email to APRA, forwarded to my Associate on the same date, stating that he had not been served with the originating process, concise statement or the two affidavits referred to above (at [6]).

34    Later that evening, at 10:53pm, Mr Welsh, a senior analyst at APRA, sent an email to Mr Garrett which stated that Mr Garrett had, in fact, been personally served at his residential address on the morning of 25 July 2023 with the following documents:

(a)    the Originating Process filed 20 July 2023;

(b)    the Affidavit of Christopher Alexander Sheehan affirmed 18 July 2023;

(c)    the Exhibit CAS -1;

(d)    the Affidavit of Nicholas Hugh Palmer (with annexures) sworn 18 July 2023; and

(e)    the Concise Statement filed 20 July 2023.

35    The following day, at 12:32pm on 26 July 2023, Mr Garrett maintained that he had not been served with the originating process, stating that:

Dear Associate Lee and Document Inspections,

As you know I still have not been served personally on the originating process of these purported proceedings please note attached for uploading to court file [of Hong Kong proceedings] …

36    Mr Garrett sent another email that same afternoon at 2:45pm to Mr Lucas Baird, a journalist at the Australian Financial Review, copying my Associate, relevantly stating:

Hi Lucas,

Sorry it has taken a while to respond……….I wanted to see what would happen.

It appears to me that you knew about the Proceedings before I did in fact while I know about the proceedings I still have not been served in accordance with the Court Rules.

I did receive a box and letter yesterday morning…………..still do not have the originating process……….classic government stupidity.

Numbnuts in the making!

(Emphasis added).

37    On the following day, at 1:37pm, Mr Garrett sent an email to my Associate. In the body of that email, there appears the words “RE APRA AND AFR AND FUTURE FUND”, below which is another email sent to Mr Joey Leith, a solicitor employed by APRA, at 12:13pm that day. It relevantly states:

Dear Mesdames, et Messieurs

Notice to Agent is Notice to Principal and Vice Versa……….Please note yellow highlight corrections below to the Email for Mr Leith, a solicitor acting under the primary duty to the Court. (AMG 6539)

(Emphasis added).

38    The email referred to in bold, which is dated 26 July 2023, was forwarded below the email above. It was sent by Mr Leith to Mr McCagh, a client service officer at APRA. Mr Garrett annotated parts of Mr Leith’s email in yellow highlight, which I reproduce below in bold:

Dear Mr McCagh

Thankyou [sic] for your email below.

I am a solicitor in the employ of the Australian Prudential Regulation Authority. I have copied the respondent into this email. Adopting the numbering and defined terms from your email, I confirm that:

1.    The respondent has been served with the Documents.

I confirm receiving a copy of a document entitled “Originating application-Form 15 – Rule 8.01 (1)” (“Document A”) via process service at 9.00 am this morning, this completes alleged personal service of the purported originating application. …

2.    A process server effected personal service on the respondent at 9.15 am on 25 July 2023. Service occurred at [the respondent’s address], which we understand to be the respondent’s residential address … We do not believe the respondent has engaged legal representation.

This statement is not correct (it is a lie) and is a breach of the paramount duty of and officer of the Court to the court triggering the obligations of the court to exercise inherent jurisdiction to supervise officers of the Court. I confirm having received Document A as set out above; the Documents referred to in the Covering Letter (attached) have now been received by me and are the subject of a briefing process to be heard as a matter arising in HCMP-1855-2022; IN THE MATTER OF THE CROWN (LIQUIDATOR AND MANAGIBG [sic] CONTROLLER APPOINTED) …

(Emphasis added).

39    On 2 August 2023, Mr Garrett sent an email to my Associate (the second email referred to above (at [11])), to which is attached a document entitled “AMG 6886 AMG to Services Australia re Internal Review of Alleged Decision dated 02.08.2023”. Annexed to that document (as “Annexure 2”) is the originating application filed on 20 July 2023 by APRA.

40    On 4 August 2023, an affidavit was sworn by Mr Harald Klavins, a licensed process server (First Klavins Affidavit). Mr Klavins deposed to receiving a box from an APRA employee on 24 July 2023 and, at 9:15am on 25 July 2023, personally serving Mr Garrett the box at his residential address: First Klavins Affidavit (at [3]–[5]). At the time of service, Mr Klavins’ evidence is that Mr Garrett invited him inside his residence, where the following conversation took place (at [7]):

Harald Klavins:    “Are you Mr Andrew Morton Garrett?”

Mr Andrew Garrett:    “Yes I am”

Harald Klavins:    “I have a large box of Court Documents here for you”

Mr Andrew Garrett:    “I have been sick, can you bring them inside for me?”

I [Mr Klavins] then carried the box inside the Property and placed it on the kitchen bench. I observed at the time I placed the Box on the kitchen bench it remained sealed.

41    In an affidavit affirmed 3 August 2023, Ms Jessica Louise Lane, a principal analyst at APRA, gave evidence that the box served by Mr Klavins contained the materials referred to above (at [33]). Mr Klavins was instructed to attend Mr Garrett’s property a second time on 27 July 2023 to serve Mr Garrett again with the originating process, which was done: First Klavins Affidavit (at [9]).

42    On 10 August 2023, a second affidavit was sworn by Mr Klavins, in which he deposed to serving the following documents on Mr Garrett at his residential address:

a)     A cover letter from Lucinda McCann, General Counsel, APRA to Andrew Garrett dated 4 August 2023;

b)    a sealed copy of APRA's written submissions in support of the application for final relief dated 3 August 2023;

c)    the sealed Affidavit of Jessica Louise Lane (including annexures) dated 3 August 2023;

d)    the sealed Affidavit of Harald Klavins (including annexures) dated 4 August 2023.

43    Mr Garrett has not put on any evidence challenging APRA’s evidence as to service of the originating (and other) documents. There is no reason to suggest that Mr Klavins or Ms Lane’s evidence is inherently unbelievable and, accordingly, I am satisfied that Mr Garrett has been properly served with the originating documents in accordance with the FCR.

44    I now turn to the substantive application.

E    THE APPLICATION

45    APRA seeks, among other things, final injunctive relief as follows:

1.    The Respondent be permanently restrained under s 65A of the Banking Act, whether by himself, his servants or agents or otherwise, from orally or in any written or electronic form:

(a)    carrying on any banking business in Australia in contravention of s 7 of the Banking Act;

(b)    assuming or using the words ‘bank’, ‘banker’, ‘banking’, ‘banca’, ‘banque’ or any words or phrases of like import (whether or not in English) in relation to any purported bank, business or purported business in contravention of s 66 of the Banking Act; and

(c)    advertising, representing or stating that any purported bank, business or purported business will carry on banking business.

2.    The Respondent be permanently restrained under s 23 of the Federal Court of Australia Act 1976 (Cth), whether by himself, his servants or agents or otherwise, from carrying on any activities incidental to carrying on a ‘banking business’ as defined s 5 of the Banking Act, including but not limited to, issuing any bill or note for the payment of money payable to bearer on demand and intended for circulation, or which purports to be a bill or note for the payment of money payable to bearer on demand and intended for circulation, in contravention of s 44 of the Reserve Bank Act 1959 (Cth).

F    THE RELEVANT LAW

46    The operation of the relevant legislative scheme was set out comprehensively in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 (at [3]–[6] per Tracey J), and does not require detailed elaboration.

47    It is an indictable offence under ss 7(1) and 8(1) of the Banking Act for a person or a body corporate to conduct a “banking business” in Australia unless APRA, acting pursuant to s 11, determines that the relevant section does not apply to a particular person or body corporate. Section 5 relevantly defines “banking business” to mean “a business that consists of banking within the meaning of paragraph 51(xiii) of the Constitution”.

48    Section 66 makes it an offence for a person who “carries on a financial business” to assume or use the word “bank” in relation to such a business. Two definitional provisions should be noted.

49    Section 66(4)(b) provides that:

(b)     A reference to a word or expression being assumed or used includes the reference to the word or expression being assumed or used:

(i) as part of another word or expression; or

(ii) in combination with other words, letters or other symbols …

50    Section 66(4)(c) provides that:

(c)    a reference to a financial business is a reference to a business that:

(i) consists of, or includes, the provision of financial services; or

(ii) relates, in whole or in part, to the provision of financial services …

51    Section 65A of the Banking Act confers power on this Court to grant certain forms of injunctive relief where a person has engaged, is engaging or proposing to engage in conduct that constitutes, constituted or would constitute a contravention of ss 7 and 66.

52    Section 65A(6)(a) confers standing on APRA to apply to the Court for an injunction. Certain specific provisions deal with the nature and extent of the Court’s power to grant injunctions and other relief under s 65A. Subsections (2), (3) and (11) of s 65A provide:

(2)     The injunction:

(a)     may restrain the person from engaging in the conduct; and

(b)     may also require that person to do a particular act or thing, if the Court thinks it desirable to do so. The Court may grant an injunction on such terms as it thinks appropriate.

(3)     The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a)     whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b)     whether or not the person has previously engaged in conduct of that kind; and

(c)     whether or not there is an imminent danger or substantial damage to any other person if the person engages in conduct of that kind.

…

(11)     If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

53    By s 65A(12), it is provided that these powers are conferred in addition to and do not derogate from any of the Court’s other powers including, relevantly, the general power conferred by s 23 of the FCA Act.

G    MR GARRETT’S CONTENTIONS

54    Mr Garrett did not appear at the hearing. Instead, several arguments were raised by Mr Garrett in emails sent or copied to my Associate in the weeks leading up to the hearing which, doing the best I can, may be summarised as follows.

55    First, Mr Garrett contends that the relevant entities are not captured by the Banking Act because none of the entities deal with the general public. Mr Garrett states that the relevant entities “do not accept deposits from other persons unless they first fill out the application forms and pay account opening fees of not less than €250,000 if a client is acceptable to us”.

56    Secondly, Mr Garrett states that APRA is estopped from commencing proceedings because it is attempting to re-litigate claims the subject of proceedings commenced in the United States District Court in Colorado and in the High Court of Hong Kong.

57    Thirdly, Mr Garrett contended that the relevant entities are “all registered in Australia with the Crown” by virtue of, among other things, his purported exercise of the executive power of the Commonwealth.

58    Fourthly, and more broadly, Mr Garrett claims this Court lacks jurisdiction to deal with the present application. This contention is put by Mr Garrett in various ways, though one example will suffice:

By way of disclosure the Australian Prudential Regulatory Authority (Liquidator and Managing Controller Appointed) seeks to prevent me from usings [sic] words associated with Banking and thereby frustrate my access to global payments platforms in order to confirm transfer of value.(AMG 6876o), [sic] they have allegedly commenced proceedings against me in the Federal Court of Australia however it is not possible for a lower power to have jurisdiction over a higher power in which regards the matters arising in all proceedings related to me are already on foot as a consequence of my consent to the jurisdiction of the High Court of Hong Kong.

(Emphasis added).

59    These contentions are devoid of merit.

60    To the extent it is necessary, I will deal with each in turn before turning to why I consider it is appropriate to grant the injunctions sought by APRA.

61    First, whether a person is carrying on a “banking business” within the meaning of the Banking Act does not relevantly turn upon whether the business “deals with the general public”. As noted above, s 66 makes it an offence for a person who “carries on a financial business” to use the word “bank” in relation to such a business. Section 66(4)(c) defines “[carrying] on a financial business” as one which consists of, or includes, the provision of financial services; or relates, in whole or in part, to the provision of financial services.

62    Secondly, there is no evidence before the Court as to the nature of the proceedings referred to by Mr Garrett in the High Court of Hong Kong or United States District Court in Colorado which could give rise to any form of estoppel.

63    Thirdly, as noted above, APRA has conducted relevant searches which demonstrate the relevant entities are not registered in Australia. There is no legal basis to contend that the relevant entities are registered by the exercise of the executive power of the Commonwealth.

64    Fourthly, the Court plainly has power to hear and determine the present application. Jurisdiction is the authority of the Court to adjudicate: Australian Securities Investment Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 (at 570 [3] per Gleeson CJ, Gaudron and Gummow JJ); see also Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020). This Court’s jurisdiction is relevantly attracted by a matter arising under a law made by the Parliament (here, the Banking Act): see Mulley v Hayes [2021] FCA 1111; (2021) 286 FCR 360 (at 377–379 [47]–[58] per Lee J).

H    CONSIDERATION

65    I am satisfied that permanent injunctions should be issued in the form sought by APRA, for the following reasons.

66    First, as noted earlier, the relevant entities are unregistered and are therefore not APRA regulated entities as they are not authorised or licensed to carry on a banking business in contravention of s 66 of the Banking Act.

67    Secondly, APRA has not given consent to the relevant entities or Mr Garrett to assume the word “bank”, “banca” or “banque” or any words or phrases of like import (whether or not in English). Nor has APRA made a determination pursuant to s 11 of the Banking Act that s 66(1) does not apply to one or more of the relevant entities.

68    Thirdly, DCB provides banking and financial services. In an “AUSTRAC update business profile form” submitted by Mr Garrett on 21 October 2022, annexed to the Palmer Affidavit (as Annexure NP-1) (at 27–29), Mr Garrett stated that DCB provided “banking and financial services”. As noted above, under the “About” tab, the DCB website describes DCB as a “private investment and trading bank” with (purportedly) various offices located throughout Australia. Further, on Christmas Day 2022, Mr Garrett sent a letter to the Prime Minister’s office and the ASIC Chairman stating, among other things, that (see Sheehan Affidavit (at [52(a)]):

i.    DCB “started issuing International Bills in June 2016”

ii.     DCB has been “trading as a Merchant Bank on the 5th January 2016”; and

iii.     DCB has been “keeping records of payments made to beneficiary accounts and keep records of those payments in Bank Statements of Account supported by Bank Guarantee for Moneys held to account”.

69    It follows that Mr Garrett, through the relevant entities, is using words restricted under ss 66 of the Banking Act without approval from APRA, and is conducting a banking business in Australia without the proper authority in contravention of ss 7 and 8 of the Banking Act.

I    CONCLUSION AND ORDERS

70    I will make the appropriate orders and direct they be served on Mr Garrett, with the following endorsement:

71    Mr Garrett should reflect carefully on this endorsement and ensure he complies with the orders of the Court and the terms of the injunction.

Associate:

Dated:    14 August 2023