Federal Court of Australia

Australian Prudential Regulation Authority v Garrett (Contempt Application) [2024] FCA 235

ORDERS

THE COURT ORDERS THAT:

1.    The no case submission be dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    Before the Court is an application brought by the Australian Prudential Regulation Authority (APRA) seeking an order that the respondent, Mr Andrew Morton Garrett, be punished for contempt of Court pursuant to s 31 of the Federal Court of Australia Act 1976 (Cth) and Pt 42 of the Federal Court Rules 2011 (Cth).

2    It is unnecessary to rehearse the background to this proceeding or the broader litigious saga which lay behind it (see Australian Prudential Regulation Authority v Garrett [2023] FCA 956). In short, on 14 August 2023, I made orders that Mr Garrett, inter alia, be permanently restrained from carrying on a “banking business” under the Banking Act 1959 (Cth) (Banking Act).

3    By this proceeding, APRA contends that Mr Garrett has breached those orders and, accordingly, that he be punished for contempt. The statement of charge (statement of charge) filed by APRA on 25 September 2023 alleges that Mr Garrett has acted in contempt of Court by continuing to:

a.     carry on banking business in Australia in contravention of s 7 of the Banking Act 1959 (Cth) (Banking Act) [in breach of Order 2(a)];

b.    assume or use the words "bank", "banker", "banking", "banca", "banque" or 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 [in breach of Order 2(b)];

c.     advertise, represent or state that purported bank, business or purported business will carry on banking business [in breach of Order 2(c)]; and/or

d.     whether by himself, his servants or agents or otherwise, carry on activities incidental to carrying on a "banking business" as defined s 5 of the Banking Act [in breach of Order 3].

4    In support of its application, APRA read the following affidavits in its case in chief:

(1)    the affidavit of Mr Benjamin Allen, sworn on 21 September 2023;

(2)    the affidavit of Mr Allen, sworn on 6 October 2023;

(3)    the affidavit of Mr Allen, sworn on 4 December 2023; and

(4)    the affidavit of Mr Allen, sworn on 14 February 2024.

5    There was no cross-examination on this evidence and APRA has now closed its case.

6    At the closure of APRA’s case, Mr Garrett has made a no case submission. I have heard extensive arguments in support of Mr Garrett’s no case submission and reject the submission for the reasons that follow.

B    Mr Garrett’s no case submission

7    It is well established that, because a contempt proceeding is quasi-criminal in nature, the alleged contemnor may make an application that there is no case to answer and, if that application is unsuccessful, to elect not to adduce evidence, but to submit that the charge is not established: Wyszynskiv v Bill [2005] NSWSC 110 (at [4] per White J); see also May v O’Sullivan (1955) 92 CLR 654 (at 658 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ); David Rolph, Contempt (The Federation Press, 2023) (at 764) .

8    In hearing Mr Garrett’s no case submission, I noted that the test to be applied in assessing a no case submission is not whether, on the evidence, Mr Garrett ought not to be found guilty of a contempt but whether, on the evidence, it is lawful for him to have been found to have committed the contempt charged.

9    Mr Garrett made several wide-ranging submissions going to the lawfulness of the contempt application. Given the nature of the arguments, which spanned from the enforceability of international treaties in Australia, to powers vested in and through the Royal family, each argument does not warrant individual identification and response.

10    It is, however, well to mention and respond to the eight essential or core points raised by Mr Garrett.

11    First, Mr Garrett submits that the matter before me is one arising under a treaty (in this regard, Mr Garrett calls into aid various treaties which are unnecessary to detail for present purposes). The consequence of this, according to Mr Garrett, is that s 38 of the Judiciary Act 1903 (Cth) (Judiciary Act) provides as follows in respect of “[m]atters in which jurisdiction of High Court exclusive”:

38     Matters in which jurisdiction of High Court exclusive

Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

(a)     matters arising directly under any treaty…

12    As I indicated to Mr Garrett, the prefatory words “[s]ubject to sections 39B…” are important because it is s 39B, as currently enacted, which has meant that this Court is a court of general federal jurisdiction, including in relation to any matter arising under any law made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. This Court is also vested with jurisdiction pursuant to a number of specific provisions of Commonwealth law, and I am satisfied the jurisdiction of the Court was properly invoked in the underlying justiciable controversy between the APRA and Mr Garrett. It is not correct to contend that this matter is within the exclusive jurisdiction of the High Court of Australia.

13    Secondly, and connected to the first argument, Mr Garrett contends that s 39B of the Judiciary Act is invalid because it seeks to invest in a body (being this Court) federal judicial power when the body constituting the Federal Court is one which is inappropriately constituted because it is self-policing and has not been the subject of appropriate safeguards, which have been proposed to ensure that judicial power is being operated effectively. Allied to that argument is, as I understand it, that the invalidity arises because it is said that investment of jurisdiction in such a body impacts upon traditional common law rights and freedoms. It is necessary merely for me to state this proposition to indicate that it is not persuasive. I am satisfied that this Court is properly invested with jurisdiction and s 39B of the Judiciary Act is valid.

14    Thirdly, an argument was made that at the hearing of the substantive matter, I did not provide a sufficient opportunity for Mr Garrett to argue his case and, hence, denied him procedural fairness. Leaving aside the factual flaws with such an argument, it is immaterial for present purposes. The Court must proceed on the basis that the final judgment and orders of the Court, being a superior court of record, have effect according to their terms and must be obeyed unless and until they are set aside.

15    Fourthly, Mr Garrett referred to the fact that he has been the subject of numerous penal orders which he stated were, in effect, “shut me up orders,” which impact upon his fundamental human rights and upon various fundamental freedoms given to him by various instruments. Again, this is not material as to whether or not the evidence adduced by APRA is sufficient to ground a lawful charge for contempt.

16    Fifthly, Mr Garrett points to the fact that he has made an application for the removal of certain criminal proceedings in the District Court of South Australia and for those proceedings to be joined to this proceeding. Mr Garrett intends for both proceedings to then be transferred to, and dealt with, the High Court. Again, leaving aside issues of power concerning that proposed course, this is not a matter material to a no case submission.

17    Sixthly, an argument was advanced concerning the constitutional arrangements which were said to impact upon the way in which this proceeding has been commenced. As I understand Mr Garrett’s argument, it is that, when the Constitution came into force, it collected the various polities which then became states, including the various state constitutions. Every law then made by a State Parliament was a federal law and each State Parliament then became unable to alter its constitutional arrangements without a referendum being passed in accordance with s 128 of the Constitution. The consequence of this argument is that various state laws passed pursuant to these irregular constitutional arrangements are invalid. Again, leaving aside the lack of merit of this argument, it is irrelevant to the no case submission.

18    Seventhly, Mr Garrett referred to the paramount duty of lawyers not to engage in misleading conduct and deceive the Court. It suffices to say that I do not understand any lawyer involved in this case has misled or deceived the Court in conducting this proceeding so as to breach this paramount duty.

19    Eighthly, there was an issue raised in Tab 1 of Ex 2, which is an outline of submissions in respect to an adjourned hearing on a charge of contempt. Although this was a no case submission, it did morph, in the end, into an application to adjourn the proceeding based on Mr Garrett’s contention that ss 56, 64 and 69(3) of the Judiciary Act required me to adjourn. This is because, in Mr Garrett’s view, I ought be satisfied that he, due to various wrongs that have been suffered by him (which I dealt with in the material he has provided), is without adequate means to provide a defence and it is desirable in the interests of justice that such an appointment be made and that it should be the subject of certification to the Attorney-General. Again, this submission is inapposite. This is not a proceeding in respect of an indictable offence, and Mr Garrett is not a person committed for trial for an offence against the laws of the Commonwealth within the meaning of s 69(1) of the Judiciary Act. In any event, as it happens, if the case proceeds, I will defer the hearing of the rest of the case to allow Mr Garrett to put before the Court any affidavit evidence upon which he is going to rely in his case.

C    Conclusion and orders

20    I have otherwise had regard to the material set out in Mr Garrett’s submissions. As I indicated to Mr Garrett, I was not putting him to any election, and he can adduce any admissible evidence he wishes to adduce should his no case submission fail. For present purposes, the proper approach is for me to take the evidence adduced in chief by APRA at its highest and draw all inferences properly open on the evidence in favour of APRA and ignore all evidence and inferences favourable to Mr Garrett to determine whether the evidence is capable of finding the charge of contempt as being proved beyond reasonable doubt.

21    This test is amply satisfied in the circumstances. Accordingly, the no case submission is without foundation and should be dismissed. I will adjourn the hearing until 9:30am on Friday, 3 May 2024 in Sydney for the purposes of hearing Mr Garrett’s case. I will order Mr Garrett to file and serve by 15 April 2024 any affidavits he proposes to rely upon in defence of the contempt application, or in relation to any orders that may be made in the event that the contempt is established.

Associate:

Dated:    13 March 2024