Garrett v Macks [2008] FCA 1419 (8 September 2008)

ANDREW MORTON GARRETT v PETER IVAN MACKS and STEPHEN DUNCAN
SAD 101 OF 2008

LANDER J
8 SEPTEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	8 SEPTEMBER 2008
WHERE MADE:	ADELAIDE

1. The time within which the application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be extended to 18 July 2008.

2. The application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be dismissed.

3. The applicant pay the costs of the respondents (Peter Macks and Stephen Duncan).

4. The transcript of today’s hearing be made available to the applicant.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE:	8 SEPTEMBER 2008
PLACE:	ADELAIDE

1 Listed before me today, are two applications by Mr Andrew Garrett, who claims to be the trustee of the Garrett Family Trust. He seeks an extension of time within which to apply for leave to appeal from orders made by me on 3 July 2008 and leave to appeal from those orders. On 3 July 2008 I dismissed an application by Mr Garrett to be joined as a party to action number SAD5 of 2006, in his capacity as the sole trustee of the Garrett Family Trust. I did so because I was not satisfied on the evidence which was then before me that the Garrett Family Trust had ever existed prior to the date of the application.

2 I found that the Garrett Family Trust, when used in the transactional documents which had been the subject of a number of transactions, was, in fact a reference to the Andrew Garrett Family Trust which was already a party to the action to which Mr Garrett sought to be joined.

3 The applicant requires an extension of time within which to apply for leave to appeal because he did not file his application for leave to appeal within the seven days as required by O 52 r 10 of the Federal Court Rules. His evidence is that he sought to lodge the application on 14 July, believing that he was entitled to lodge the application in the Western Australian Registry when he was told that the application needed to be lodged in this Registry.

4 Of course, as it has been pointed out, whether he lodged the application in any Registry of the Federal Court by 14 July 2008 he was already out of time. However, the respondents to the application, who are Mr Garrett’s and his wife, Averil Garrett’s respective trustees in bankruptcy, have consented to an extension of time within which Mr Garrett has to lodge his application, not because, as they made it clear, they think that the application for leave to appeal has any prospects of success but because they wish that the application be dealt with finally and as soon as possible. In those circumstances, their concession that an extension of time ought to be granted is in fact no concession that leave to appeal ought to be granted consequent upon time being extended.

5 There will be an order extending the time within which the applicant has to lodge his application for leave to appeal from my orders of 3 July 2008 to 18 July 2008, which is the date upon which the notice of motion seeking extension of time and seeking leave to appeal was filed.

6 The notice of motion of 18 July 2008 sought a number of other orders in addition to the two orders to which I have referred. They have been separately dealt with on a previous occasion, 26 August 2008, when most of the applications sought in the notice of motion were dismissed. On 26 August 2008 I explained to Mr Garrett that he could request me to direct his application for leave to appeal to the Full Court but that, in the end result, it would be for me to decide whether it was appropriate in the circumstance of this case for it to be decided by me or by the Full Court.

7 On that occasion, he, as did the respondents, agreed that I should dispose of the application for leave to appeal. At the hearing today, Mr Garrett requested that I direct that the application for leave to appeal be heard by the Full Court and, if the Full Court thought appropriate and leave were granted, the appeal be heard instanter. Mr Garrett has addressed me at great length as to why the matter should be directed to the Full Court but, in the end result for the reasons which follow, in my opinion, it was appropriate for me to consider the application for leave.

8 The orders which are under challenge were the result of the subject of an injury into whether the Garrett Family Trust ever existed.

9 Mr Garrett contended that the Garrett Family Trust was a trust independent of the Andrew Garrett Family Trust. His and his wife’s trustees in bankruptcy, the respondents to the application, contended otherwise. Mr Garrett had the legal responsibility of establishing the existence of the trust. He was represented at the hearing by his solicitor who drew my attention to all of the circumstantial evidence which was said to support a finding that the Garrett Family Trust existed independently of the Andrew Garrett Family Trust. In the end, I was not persuaded that the evidence supported such a finding.

10 Indeed, I held that the Garrett Family Trust was synonymous with the Andrew Garrett Family Trust. In making that finding, I relied upon all of the evidence which was then before me which I discussed in my reasons. In particular, I referred to the transactional documents which made reference to the Garrett Family Trust for the purpose of determining whether those transactional documents indicated the separate existence of that trust. Again, for the reasons which I have given, I was not satisfied that the trust ever existed. No evidence of any deed settling the trust was tendered. The settlor was not called. Mr Garrett did not give evidence.

11 In circumstances which I explained in my reasons, his failure to give evidence was not relied upon by me as indicating that his evidence would not support his own application in the Jones v Dunkel (1959) 101 CLR 298 sense. It did not seem to be appropriate or fair to draw that inference against Mr Garrett in the circumstances which I explained in my judgment. However, the fact of the matter is, he did not give evidence and there is no evidence of a lot of the matters which were necessary to be established for the finding which he contended for. He has been unable to identify when it was that the trust was settled. He has been unable to identify with any particularity who the beneficiaries of the trust were said to be except that they were probably the same beneficiaries as the beneficiaries of the Andrew Garrett Family Trust.

12 He has suggested that the trust was settled on the same day as the Andrew Garrett Family Trust was settled but has not produced the corresponding trust deed to the trust deed which settled the Andrew Garrett Family Trust. For reasons which I gave at length, in the end result, I was not satisfied that the Garrett Family Trust ever existed as a separate entity.

13 There was no question of law involved in the inquiry. The inquiry was purely factual. Mr Garrett failed because he was not able to prove, to the necessary degree of satisfaction, the existence of the trust. It seems to me that this is a perfectly straightforward matter with which the Full Court need not be troubled with, especially in view of the very complex and, with respect, convoluted way in which Mr Garrett put his arguments on this and on previous occasions.

14 It seemed to me that it was appropriate that I deal with the application for leave which I have done.

15 Mr Garrett has filed two proposed notices of appeal, the second exhibited to an affidavit of 2 September 2008. He has also filed 50 pages of submissions in support of his application. I am not satisfied, notwithstanding the length of the draft notice of appeal or the length of the submissions, that Mr Garrett has shown there to be any arguable error in my findings on this simple and straightforward question of fact.

16 Mr Garrett has contended that the decision is in error because there is a substantial body of evidence which was not tendered at the hearing of this discrete issue and which, if tendered to the Full Court, would persuade the Full Court that the result arrived at was wrong.

17 I asked him, because neither his draft notice of appeal nor his submissions identified the evidence which he would seek to adduce pursuant to s 27 of the Federal Court Act 1976 (Cth) (the Act) before the Full Court to identify that evidence. He identified the following documents: Trademark search of IP Australia; email from Anthony Norris of Collison and Co, patent attorneys to Mr Ujvari, solicitor of Commercial and General Law, SA Proprietary Limited; a letter of Mr Ujvari of 21 April 2008 to Collison and Co; an email of Mr Garrett to Mr Ujvari of 5 June 2008; a list of documents of the defendant, the National Australia Bank in action number 127 of 2004 in the Supreme Court filed on 5 May 2004; a list of documents of the plaintiff, Andrew Garrett Wine Resorts Proprietary Limited; and the defendant by counter-claim, Andrew Garrett in the same action, filed on 8 June 2004; a list of documents of the second respondent, Mr Duncan, the trustee in bankruptcy of Ms Avril Garrett in SAD5 of 2006 filed on 29 August 2008; and a letter of Lipman Karas to Commercial and General Law of 3 September 2008.

18 The relevance of a number of those documents is not clear. I think it is sought to adduce the evidence in the Full Court for the purpose of presenting to the Full Court further circumstantial evidence from which it may be inferred that the Garrett Family Trust is a separate identity. For example, it is asserted that in the trademark search of IP Australia that the Andrew Garrett Family Trust withdrew the application for the trademark 634078. It was said that it may be inferred that it did so because it was not a party to the deed of settlement referred to extensively in my reasons of 3 July 2008.

19 The email from Mr Norris of Collison and Co to Mr Ujvari of Commercial and General Legal SA Proprietary Limited indicates that Cockatoo Ridge Wines Limited had denied permission for Mr Garrett or his lawyers to have access to documents in Australia or overseas relating to Cockatoo Ridge Wines Limited business or trademarks. I am not clear of the relevance of that document except that it does indicate the matter to which I have referred. The letter of Commercial and General SA Proprietary Limited to Collison and Co shows that Commercial and General Legal SA Proprietary Limited, which was acting for Mr Garrett, had made inquiries of parties seeking to establish or obtain a copy of the deed of settlement of the Garrett Family Trust. The email from Mr Garrett to Mr Ujvari is put forward for the purpose of indicating, apparently, that Mr Garrett has separately maintained the existence of the Garrett Family Trust.

20 The list of documents has even a lesser relevance than the documents to which I have referred. It is suggested that the absence of any reference to the particular trusts and the different lists of documents indicates the existence of the Garrett Family Trust as a separate entity. That seems to me not to follow. In any event, none of the documents, it seems to me, have such weight that they would indicate that the result which was arrived at was in error.

21 Mr Garrett identified those documents after I questioned him so to do, so that I could know what it was that he wanted to put before the Full Court. He also, at the same time, said that he would make himself available for examination by the Full Court. As I told him, that was an unlikely way in which the Full Court would proceed but that if he wished to give evidence before the Full Court he would have to bring himself within the provisions of s 27 of the Act and identify the evidence which he wished to give before the Full Court would entertain such an application.

22 The test for the reception of further evidence in the Full Court is clear enough. The party seeking to adduce further evidence in the Full Court must show that reasonable diligence was exercised to procure the evidence for the trial and that if the evidence which is sought to be adduced in the Full Court were allowed an opposite result would have been produced. The evidence, which is sought to be relied upon, must have sufficient probative value to satisfy the second of those tests. The evidence must be cogent and, even if a party satisfied all of those matters, there is still a question of the exercise of the discretion and the admission of that further evidence.

23 Mr Garrett said that he wished to give oral evidence as to his actions as trustee of the Garrett Family Trust as distinct from his actions as trustee of the Andrew Garrett Family Trust. He said he wanted to give evidence to explain the documentary evidence, to which I made reference in [94] and following in my reasons of 3 July 2008 which indicated that Mr Garrett had, over a period of time, acted inconsistently with the existence of the Garrett Family Trust. Shortly after he identified the oral evidence he wished to give, he indicated that in fact he did not wish to give oral evidence to the Full Court.

24 A little later he said that he would seek an order on appeal from the Full Court seeking discovery from Cockatoo Ridge Proprietary Limited of the documents evidencing their application for trademarks. That was a reference, of course, to the reference in the email from Mr Norris to Mr Ujvari, where Cockatoo Wines had indicated they would not co-operate. Next he said that he would seek an order in the Full Court seeking discovery from Collisons of any documents relevant to the Garrett Family Trust. I explained to him that his proposed notice of appeal did not indicate that he sought orders in the nature of discovery on the appeal.

25 A little later he said that he did wish to give oral evidence in the Full Court but that he was not able presently to identify the evidence which he wished to give. He said that he would not be able to identify that evidence for a further two weeks. Next, he said that he wished to tender the whole of the contents of a separate proceeding, SAD12 of 2006 of this Court. Later, he said that he only wished to present a submission made by one of the parties in that proceeding. Later, he handed up an affidavit of Ben Cowling, sworn on 22 July 2005 in SAD5 of 2006, which he said he wished to tender to the Full Court and even later, he handed up a further affidavit of his own sworn on 16 March 2007 in another matter, SAD29 of 2005, which he said he also wished to put before the Full Court.

26 It is clear, it seems to me, that Ms Maharaj QC’s submission that Mr Garrett is seeking to re-litigate this action in the Full Court on different terms and on different evidence to that which was presented to me must be accepted. Mr Garrett was not able to attend the hearing before me for the reasons which I have identified in my reasons given on 3 July 2008. He did not have the funds to enable him to travel from Western Australia for that purpose, nor to pay for a video conference. That is unfortunate. However, his lawyers indicated they wished to proceed with the matter at that time and they did so on the limited evidence which they put before the Court. That evidence was not sufficient to persuade me that the contention that Garrett Family Trust was a separate entity could be accepted.

27 It would not be appropriate to give Mr Garrett leave to appeal for the purpose of seeking orders from the Full Court for discovery from third parties and then seeking to re-litigate the matter before the Full Court on different evidence, some of which has still not been identified. The evidence which has been identified mainly existed prior to a hearing before me on 10 and 11 June 2008, and no explanation has been given for the failure to adduce that evidence at the hearing on those days.

28 There is nothing in the evidence which I have read in the documents which have been presented to me which would lead me to think that I would have arrived at a different result if that evidence had been put before me. Indeed, I think most of the evidence is irrelevant. I think therefore that it would be unlikely that the Full Court would allow the reception of the further evidence which Mr Garrett seeks. The draft notice of appeal complains of a number of errors but does not identify, with any particularity, where it was that it is said I went into error. It is not, for example, shown in the proposed notice of appeal.

29 It is not said in the proposed notice of appeal that I took into account irrelevant evidence or failed to take into account relevant evidence. It is not said that I identified the wrong issue to be decided. The highest the proposed notice of appeal puts the applicant’s case is that I ought to have, on the evidence, reached a different conclusion. There is nothing in the proposed grounds of appeal which indicate, in my opinion, that the applicant can satisfy the test in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 that the decision is attenuated with sufficient doubt such that the matter ought to be reconsidered by the Full Court or that the applicant would suffer an injustice if leave were not granted, supposing the decision to be wrong.

30 The notice of appeal also seeks to raise a number of irrelevant matters which were never raised before me and which could not be the subject of an appeal. For example, the applicant wishes to ventilate as an issue before the Full Court the collateral purpose which he said has motivated the trustees in bankruptcy to bring the proceeding against him. That was not an issue before me and I have not ruled upon it. If he wishes to raise a collateral purpose, it has to be raised before the judge who is charged with hearing that matter rather than before the Full Court for the first time. The applicant also has sought in the notice of motion of 18 July, and seeks again in an amended notice of motion which was filed on 1 September 2008, for further orders for discovery against the two trustees in bankruptcy in order, apparently, to tender those documents on the appeal.

31 On the last occasion when the matter was before me on 26 August 2008, I dismissed other claims in the notice of motion on the basis that they were irrelevant to the application for an extension of time within which to seek leave to appeal and the application for leave to appeal. Notwithstanding that those applications have been dismissed, the applicant has renewed those applications in a notice of motion filed on 1 September 2008 and for the purpose, I think, of seeking to persuade the Full Court that they ought to give him a new and fresh trial in relation to these matters, and to hear the application again.

32 For all of those reasons, in my opinion, the applicant has not satisfied the Décor test and the application for leave to appeal must be dismissed. There will be orders:

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the First Respondent:	Ms S Maharaj QC

Solicitor for the First Respondent:	Lipman Karas

Counsel for the Second Respondent:	Mr M Hayes

Solicitor for the Second Respondent:	Cosoff Cudmore Knox

Date of Hearing:	8 September 2008

Date of Judgment:	8 September 2008

Federal Court of Australia

Garrett v Macks [2008] FCA 1419 (8 September 2008)