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[2004] TASSC 4
Supreme Court of Tasmania
2004-02-23
Blow J, Heerey J
Original judgment source is linked above.
CITATION: Mentyn v A & B [2004] TASSC 4
Procedure - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Reasonable suspicion of bias - Previous rulings and findings adverse to litigant.
Procedure - Supreme Court procedure - Tasmania - Jurisdiction and generally - Abuse of process of court - Whether application groundless and futile - Disciplinary proceedings against legal practitioners.
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, applied.
Judgment Number: [2004] TASSC 4
1 The applicant, Mr Mentyn, has filed two originating applications seeking orders for two legal practitioners, whom I will refer to as "A" and "C", to be struck off, suspended, or otherwise disciplined, as well as certain other related orders. Their firms have also been joined as respondents. The applications relate to the conduct of the practitioners during a directions hearing in the Federal Court of Australia on 11 June 2002 before Heerey J. The applications came before me on 8 December 2003. Counsel for the two practitioners, Mr McKee, submitted that both originating applications should be dismissed on the basis that each was an abuse of process, frivolous and vexatious, and that the relief sought in each application could not properly be granted upon the affidavit material that had been filed. Mr Mentyn submitted that I should disqualify myself, not just in relation to these two originating applications, but also in relation to a number of other matters involving him that came before me on the same day. Mr McKee made full oral submissions as to the dismissal of the originating applications. Mr Mentyn began to make oral submissions as to the disqualification issue, but I stopped him because of a shortage of Court time. I directed that any further submissions as to the disqualification be made in writing or by e-mail on or before 27 January 2004. I also directed that Mr Mentyn's submissions in response to Mr McKee's submissions concerning dismissal of the originating applications be made in writing on or before that date. A quantity of written material was faxed to the Registry, apparently by Mr Mentyn, on that date. Two further affidavits were sworn and filed by him the following day. I have decided that I do not need to hear Mr McKee in relation to the disqualification application.
2 Mr Mentyn submitted that I should disqualify myself as a result of things that I said and did on earlier occasions in litigation involving him. All of the relevant litigation seems to have arisen from a conveyancing transaction. Mr Mentyn signed a contract for the purchase of a property near St Marys, but subsequently decided not to proceed with his purchase. The vendors, Mr and Mrs Falcone, sued him. A wide variety of other proceedings, including the two applications now before me, were subsequently instituted. The money with which Mr Mentyn had initially intended to complete his purchase, amounting to a little over $100,000, was paid to the vendors' original solicitor, Mr Pearce, then paid by Mr Pearce to a trustee company, and subsequently paid into Court by the trustee company, which relied on the Trustee Act 1898, s48(1). It remains in Court.
3 The proceedings involving Mr Mentyn that have come before judges of this Court at first instance include the following (amongst others):
This is the action by which the vendors sued Mr Mentyn, who was previously known as John Andrew Meyer. On 29 August 2003 I ordered that judgment be entered for the vendors against him for $26,000 plus costs: Falcone v Mentyn [2003] TASSC 79. That judgment is apparently wholly unsatisfied. Mr Mentyn has appealed to the Full Court in respect of it, and has applied by interlocutory applications for extensions of time to seek its setting aside, a stay of execution in respect of it, and a review by a judge in respect of the taxation of the costs.
Although Mr Mentyn had decided not to proceed with the purchase of the St Marys property, he registered a caveat which impeded the re-sale of that property by the vendors. They instituted this proceeding seeking an order for the removal of the caveat. They obtained that order, with costs.
This proceeding was initiated as an application to the Federal Court of Australia. The respondents were the vendors, their real estate agent and Mr Pearce. On 11 June 2002, at the conclusion of the directions hearing to which the present disciplinary proceedings relate, Heerey J ordered that the application be transferred to the Supreme Court of Tasmania pursuant to the cross-vesting legislation. Prior to that date, Mr Mentyn's statement of claim in that proceeding had been struck out. He had not filed another one.
This was a cross-action whereby Mr Mentyn sued Mr Pearce and the vendors for damages. On 1 April 2003, Underwood J ordered that the statement of claim be struck out with costs. The costs of both Mr Pearce and the vendors were subsequently taxed. Mr Mentyn has applied for a review by a judge of the taxation of the vendors' costs.
In this matter Mr Mentyn issued a writ naming seven defendants. He is seeking damages from six of them. In respect of the other defendant, Crawford J, the order sought is one for his removal from office as a judge of this Court.
In this matter an originating application was filed on behalf of the vendors and D, the partner of C. They are seeking a charging order pursuant to the Supreme Court Rules 2000, r931, in respect of the money paid into Court by the trustee company. By that means, they are seeking to enforce the judgment for $26,000 plus costs, and various other costs orders made in an assortment of proceedings. This application came before Cox CJ on 10 November 2003. Mr Mentyn submitted that his Honour should disqualify himself. I understand the matter has been adjourned sine die, and that the disqualification application has not been determined.
This is an originating application by which Mr Pearce is seeking a charging order in respect of the funds in Court for the purpose of enforcing a number of orders for costs. It also came before Cox CJ on 10 November 2003, was the subject of a disqualification application not yet determined, and stands adjourned sine die.
This is an application by Mr Mentyn in respect of the money paid into Court. It came before me on 8 December 2003. I directed that it be adjourned sine die and listed before Cox CJ when applications M286/2003 and M297/2003 are next before his Honour.
4 The matters that were before me on 8 December 2003, and thus the subject of Mr Mentyn's disqualification application, comprised the following:
* the disciplinary applications concerning A and C;
* applications by most of the defendants to action 603/2003 for that action to be summarily dismissed;
* an application by Mr Mentyn for extensions of time for the making of an application to set aside the vendors' judgment;
* an application by Mr Mentyn for a stay of execution in respect of the vendors' judgment;
* an application by Mr Mentyn for reviews by a judge of the taxations of the vendors' costs in actions TRA 282/2002 and 51/2003.
5 In substance, Mr Mentyn submitted that I should disqualify myself in relation to all his matters because I was biased, because he reasonably apprehended that I was biased, and because any impartial observer, if aware of what I had said and done in matters involving him, would form the impression that I was biased against him. It is therefore necessary to outline the history of my involvement in Mr Mentyn's matters, particularly the vendors' action (TRA 282/2002).
6 Mr Mentyn first appeared before me on 17 June 2002. He was seeking (a) a stay of the vendors' action on the basis that it involved a constitutional question that should be argued in the High Court; (b) summary judgment in that action; and (c) a stay of execution in respect of the order for the costs of the proceedings for the removal of the caveat. I made procedural directions and adjourned all matters to a date to be fixed.
7 On 27 June 2002, I heard submissions from Mr Mentyn as to the existence of a constitutional point, and decided that none arose. I heard submissions as to the summary judgment application, and dismissed it. The vendors had initially sued for specific performance and/or damages. Since they had elected to resell the property, it was necessary for their statement of claim to be amended. I directed that an amended statement of claim be filed by 8 July 2002, and that Mr Mentyn have leave to file and serve an amended defence and counterclaim on or before 26 July 2002. In relation to the costs of the proceedings for the removal of the caveat, he appeared to have a meritorious argument as to one or more specific items that had been allowed on taxation, but needed an extension of time in order to object in respect of the taxation. I directed that he file and serve an appropriate interlocutory application, and stayed execution of the costs order in question until further order. I refused to stay the execution of various other costs orders, since there was no proper basis for them to be stayed.
8 The next directions hearing was on 5 July 2002. Mr Mentyn did not attend, but a certificate from a medical practitioner was faxed to the Court, together with a covering letter from Mr Mentyn's wife. The certificate stated only that Mr Mentyn was "unfit for court appearance from 4/7/2002 to 4/8/2002 inclusive". Mr Mentyn had not filed the necessary interlocutory application in respect of the taxation of the costs of the proceedings concerning the caveat. The vendors' solicitor/counsel submitted that I should not extend the stay of execution in respect of the relevant costs order, but I decided to do so. I did not know how ill Mr Mentyn was, and took the view that another month's delay would do no great harm. I directed that Mr Mentyn be provided with a transcript of the day's proceedings, and that there be a further directions hearing on 12 August 2002.
9 On 12 August 2002, for the second time, Mr Mentyn did not appear. A further medical certificate had arrived in the Registry, but it did not identify any medical condition that precluded Mr Mentyn's attendance, nor did it provide any information as to his prognosis. In the vendors' action for damages, their solicitors had punctually filed and served an amended statement of claim, but Mr Mentyn had not filed an amended defence and counterclaim. As things turned out, he did not ever do so. I ordered that he do so on or before 2 September 2002, and made an order permitting the vendors, if he defaulted, to enter judgment for damages to be assessed. In the cross-vested proceedings, Mr Mentyn had not filed a statement of claim to replace the one that had been struck out by a judge of the Federal Court. I ordered that he file and serve one on or before 2 September 2002, and made an order permitting the respondents to enter judgment for dismissal of the proceedings, with costs, in default. The vendors' solicitor/counsel submitted that I should not extend the stay of execution in respect of the costs of the caveat proceedings, but I made orders extending that stay until 2 September 2002, and extending it indefinitely in the event of the necessary interlocutory application being filed before that date. Once again I directed that a transcript of the day's proceedings be provided to Mr Mentyn.
10 The next directions hearing was on 6 September 2002. For the third time, Mr Mentyn did not appear. Earlier that day the Registrar received a memorandum asserting that Mr Mentyn was unavailable, together with a medical report. The memorandum appeared to come either from Mr Mentyn or someone representing his interests. It included a sentence reading, "This is to confirm that the above doctor's letter be handed directly to the judge in the strictest confidence." If I had read the doctor's letter, my duty to afford all parties procedural fairness would have required me to disclose its contents to Mr Mentyn's various opponents. In the circumstances, I decided the best course was not to read the doctor's letter. I have still not read it. It has been in a sealed envelope ever since that day. According to other correspondence received by the Registrar, Mr Mentyn had an appointment with a psychiatrist, Dr Weidmann. Counsel for the vendors, their estate agent, and Mr Pearce, all urged me not to allow Mr Mentyn any further time in respect of any matter. They submitted that the cross-vested proceedings should be dismissed, and that the vendors should be allowed to enter judgment for damages to be assessed. However it seemed quite possible to me that Mr Mentyn was temporarily incapacitated as a result of some sort of psychological or psychiatric condition, and that it might be in the interests of justice for him to be given further time to comply with my orders as to the filing of pleadings. I therefore directed that judgment was not to be entered in the vendors' action or the cross-vested proceedings until an order or direction to the contrary was given, directed that there be a further directions hearing on 7 October 2002, and directed that Mr Mentyn file and serve one or more affidavits or reports of medical practitioners providing details of (a) his actual or suspected medical conditions, (b) the extent to which any such condition or conditions prevented him from preparing court documents and participating in litigation, (c) the likely duration of any such incapacity, and (d) his prognosis. Mr Mentyn had still not filed any application in respect of the costs of the caveat proceedings. I decided that it was inappropriate for execution to be stayed any longer in respect of the relevant costs order. I took into account the fact that moneys could be refunded if an application for an extension of time were filed and granted, and any items in the relevant bill of costs successfully challenged.
11 On 7 October 2002, for the fourth time, Mr Mentyn failed to appear. My order as to the provision of medical information had not been complied with. Counsel submitted that judgment should be entered against Mr Mentyn both in the cross-vested proceedings and in the vendors' action. However information had been provided to the effect that he had an appointment with Dr Weidmann on 22 October. I rescinded the direction preventing judgment from being entered in the cross-vested proceedings. I took into account the fact that the dismissal of those proceedings would not preclude Mr Mentyn from pursuing the same remedies in subsequent proceedings. However a judgment against him in the vendors' damages action could not have been circumvented. I decided to give him yet another chance in that action, and appointed a further directions hearing for 28 October.
12 On 28 October 2002, Mr Mentyn did not appear. It transpired that he had not been sent a formal notice of hearing, though he might have received a transcript that revealed when that directions hearing was to be held. I adjourned the directions hearing to 18 November.
13 On 18 November 2002, for the sixth time, Mr Mentyn did not appear. A fax received in the Registry asserted that he was having ongoing consultations with a psychiatrist. I was concerned that he might be suffering from a psychiatric illness, and that it might be unfair for judgment to be entered against him as a result of him not having responded appropriately to the amendment of the vendors' statement of claim. I therefore ordered that the vendors' damages action, including the counterclaim, be tried by affidavit and without pleadings. I referred to the possibility that, in the event of an ongoing psychiatric problem preventing Mr Mentyn from attending the trial, he would retain the right to apply for a new trial under the Supreme Court Rules, r570(2), and for any necessary extension of time for the making of such an application. I directed that the action, including the counterclaim, be listed for trial on 9 December 2002.
14 A further directions hearing was held on 2 December 2002 in relation to a question that arose as to the service of an affidavit. Mr Mentyn attended that directions hearing. During it, he told me that he wanted to remove his counterclaim entirely, and that he did not want me to hear his counterclaim. I directed that the counterclaim be treated as discontinued, and that any claim that was made or could have been made in the counterclaim could be pursued in a fresh action. Mr Mentyn told me that he did not have time to file affidavits for the trial the following week, and that he was not in a fit state for doing anything. He applied for an adjournment. The vendors' solicitor/counsel opposed that application. I refused the adjournment. I began stating my reasons for refusing it, but Mr Mentyn interrupted to such an extent that I did not complete them. I had no evidence as to when, if ever, Mr Mentyn would be ready, willing and able to take part in a trial of the vendors' action. In the event of him not appearing, personally or by counsel, there remained some possibility that a second trial could be ordered if such a course was just. In those circumstances, I considered that the trial of the vendors' action had been delayed for so long that the interests of justice required that the matter be brought to trial without further delay.
15 The matter was called on for trial on 9 December 2002. Mr Mentyn did not appear personally or by counsel. A letter from him requesting an adjournment had been received in the Registry. It was accompanied by a certificate from Dr Weidmann. I had noticed a possible deficiency in the vendors' affidavit material which I thought might lead their counsel also to seek an adjournment. The vendors had sworn an affidavit in which they said they had entered into a contract to sell the St Mary's property to Mr Mentyn. A copy of the contract was annexed. It contained a clause which stated that it was a condition precedent to completion thereof that, unless disclosed in that contract, there were no restrictions on the use of the property as at the date of the contract which might hinder or prevent the purchaser from using the property for the purpose of a residence. There was nothing in their affidavit as to their being no such restrictions on the use of the property. Upon my pointing this out to their counsel, he sought an adjournment of the trial. As both sides wished the trial to be adjourned, I adjourned it.
16 The trial eventually commenced on 23 April 2003. The witnesses called by the plaintiffs were the two vendors and Mr Pearce. Mr Mentyn cross-examined all three of them. In relation to each witness, I eventually stopped his cross-examination after warning Mr Mentyn that I might do so after a specified time, waiting until after that time, and deciding that further cross-examination had become inappropriate. Mr Mentyn was cross-examined. Thereafter he commenced to give oral evidence in the nature of re-examination evidence. At the end of the fifth day of the trial, 11 June 2003, I adjourned it to a date to be fixed and gave directions that on that day (a) Mr Mentyn would be permitted to give evidence in the nature of re-examination evidence for up to one hour; (b) he would be permitted to address for 1½ hours; (c) the vendors' counsel would be permitted to address for 1½ hours; and (d) a timetable would be fixed for supplementary written submissions from each side. The matter was relisted for 11 July 2003, but Mr Mentyn applied for an adjournment that day because he was not ready to complete his re-examination evidence, nor to make final submissions. I directed that his further re-examination evidence was to be provided in affidavit form within 21 days, and that he or a legal practitioner engaged by him could make written submissions within 35 days, with liberty to apply.
17 On 11 August 2003, Mr Mentyn applied for an extension of time for the provision of written submissions. I refused that application. I said I thought I had given him all the time and opportunities that procedural fairness required, and that I would simply have to come to a judgment without the benefit of any closing address or closing written submissions from him if they were not received. Some written material was subsequently faxed to the Court. The vendors' counsel made his closing submissions orally on 21 August 2003. I permitted him to speak for more than 1½ hours in order to bring the trial to an end. Mr Mentyn sought to reply but, in accordance with the Court's usual practice in civil cases, I did not permit him to reply. When I gave judgment on 29 August 2003, Mr Mentyn was not present. In his absence, the vendors' counsel sought the usual order for costs, and I made such an order.
18 It is well settled that, leaving aside questions of waiver and necessity that are not presently relevant, a judge must disqualify himself or herself if he or she is actually biased against a litigant, or if a party reasonably apprehends, or a fair-minded lay observer might reasonably apprehend, that he or she might not bring an impartial mind to the resolution of the question or questions that he or she is required to decide: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; R v Watson; ex parte Armstrong [1976] HCA 39; (1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Re JRL; ex parte CRL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v R [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2002) 201 CLR 488; Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337.
19 However, in applying the established principles, it is important to take into account the matters referred to by Mason J (as he then was) in Re JRL; ex parte CRL (supra) at 352 in the following paragraph:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39; (1977) 136 CLR 248 and Livesey [1983] HCA 17; (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established' (Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1977) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
20 Mr Mentyn submitted that I had refused every application he had ever made to me. He said that I refused him an adjournment on 2 December 2002, but then granted one to opposing counsel on 9 December 2002. He reminded me that, when he was in the witness box during the trial of the vendors' action, I asked him whether he wished to rely on mental incapacity as a defence to the vendors' claim. He reminded me that, in my reasons for judgment in the vendors' action, when faced with conflicting versions of a telephone conversation between him and one of the vendors, Mr Falcone, I said this (Falcone v Mentyn (supra) at par39):
"I think the defendant's evidence as to this point was incorrect. I prefer the evidence of Mr Falcone. He seemed a very reliable witness to me, whereas I think that the strain of this litigation may have somehow distorted the defendant's memory of the conversation."
He submitted that my judgment was defamatory of him, and destructive of his credibility, integrity, honesty and sincerity.
21 I do not consider myself to be actually biased against Mr Mentyn. It is true that I have rejected his account of an important conversation with Mr Falcone, and that I have rejected a number of submissions and applications made by him. However I have not made any criticism as to his sincerity and honesty, and I consider it my duty to consider thoroughly all submissions that he puts to me and all possible weaknesses in the submissions of his opponents. The fact that a number of previous submissions and applications have lacked merit does not mean that any particular future submission or application should be assumed to lack merit. Much of the evidence that he gave during the trial of the vendors' action was thorough, and apparently accurate and reliable. I have not prejudged his credibility as a witness, nor any dispute involving him.
22 From the point of view of the hypothetical lay observer, I think it is significant that during the series of directions hearings that were not attended by Mr Mentyn in late 2002, his opponents by no means got all they asked for. In relation to the proposed interlocutory application concerning the taxation of costs, I gave him a second chance, and then a third chance. On 6 September 2002, I gave him a second chance to file an amended statement of claim in the cross-vested proceedings. I gave him numerous opportunities to amend his defence and counterclaim in the vendors' action, and ultimately took the very unusual step of dispensing with pleadings altogether, solely for the purpose of giving him a chance to defend the action. In my view my refusal of his adjournment application on 2 December 2002 could not, in the circumstances, be regarded as an indication of bias. It is true that I granted an adjournment when opposing counsel sought one the following week, but it is particularly significant that Mr Mentyn was also seeking an adjournment at that time.
23 In my view it was appropriate for me to enquire during the trial of the vendors' action whether Mr Mentyn wished to rely on any defence associated with mental incapacity. I now regret the timing of my question, since it apparently worried and distracted Mr Mentyn. However I ultimately concluded that he plainly had the requisite mental capacity for the making of a contract for the purchase of real estate: Falcone v Mentyn (supra) at par17. Whilst I discussed the possibility of Mr Mentyn being incapacitated by a psychological or psychiatric condition during the 2002 directions hearings, I did not ever express a concluded view that he suffered from any particular condition, or that he was incapacitated to any extent. As Mr Mentyn has pointed out, I made some remarks during the directions hearing of 7 October 2002 as to the possibility of someone being appointed to represent his interests either under the Guardianship and Administration Act 1995 or as a litigation guardian. However I was doing no more than making suggestions for consideration by counsel as to how the trial of the vendors' action could proceed in a manner whereby Mr Mentyn's interests could be protected if he was in fact incapacitated by mental illness.
24 In the written material submitted by Mr Mentyn, he asserted that I had actively hindered him from seeking proper care. That was certainly not my intention. He asserted that I had conspired with the barristers who appeared against him. I did not. My only communications with them were (a) on occasions when Mr Mentyn was present and (b) on occasions when Mr Mentyn was given a chance to be present, was absent, and was provided with transcripts of all that was said. He asserted that counsel and I impersonated qualified medical practitioners "with persistent and malignant pseudo-diagnosis". That is not correct. I discussed the possibility of him being incapacitated by mental illness, without expressing a diagnosis. Mr Mentyn complained that I denied and ignored "the fact that the plaintiffs had no cause of action for a full 18 months". I take him to be referring to the delay between the vendors' re-sale of the property and the consequent amendment of the statement of claim. However the only appropriate step for me to have taken was to direct the filing and service of an amended statement of claim, which I did. Mr Mentyn has complained that I did not let him raise equitable defences at the trial of the vendors' action. I think he must be referring to an attempt by him to raise a "clean hands" defence, which resulted in me telling him that such a defence could only be raised to an equitable claim, whereas the claim against him was a common law claim. There is nothing else that I could have done. Mr Mentyn complains that I denied him an adjournment as from July 2002, but I allowed him further time on a number of occasions, and stopped allowing him further time only after I had unsuccessfully sought medical information that might have warranted a further adjournment. He has complained that I dismissed the cross-vested proceedings, but I think my decision to do that was the only appropriate one in the circumstances. He complains that he was denied natural justice because I did not "allow" him to file an amended defence. On the contrary, nothing could have been fairer to him than to have allowed him to raise any defence, pleaded or not. He complains that I did not explain procedural steps during the hearing, but has not said what steps he is talking about. I explained procedural matters on a number of occasions during the trial. As far as I am aware his only complaint was that I did not acquaint him with his right to cross-examine the vendors and Mr Pearce generally in relation to their credit. In my view, my duty to afford him procedural fairness did not require me to explain every rule of evidence that was conceivably relevant to the trial, and the explanations I did provide were adequate. He complains that I did not intervene to limit the questions asked of him in cross-examination, but there was no basis for me to do so. He complains that I actively worked for the vendors and actively sought to exhaust his mental, physical and spiritual resources. I was not doing any such thing. He complains that I denied him an opportunity to present final written submissions in reply to opposing counsel's submissions. However he had no right of reply. He had had an opportunity to make written submissions before his opponent's closing speech. I think I have now addressed all the specific criticisms that Mr Mentyn has made in support of his disqualification application. He has made a number of general criticisms of my conduct, but the question whether I should disqualify myself needs to be determined by considering the specifics of my conduct in relation to Mr Mentyn's litigation, and then applying the tests laid down by the authorities.
25 Mr Mentyn made a specific submission as to my disqualification in relation to the order sought against Crawford J in action 603/2003. Essentially he submitted that he was aggrieved by an order of Crawford J which facilitated the enforcement by the vendors of the order for costs that I made in their favour on 29 August 2003, and that I therefore had an interest in the outcome of the action against Crawford J. I will deal with that specific submission in another judgment. It adds nothing to the submissions concerning my disqualification in respect of other matters.
26 As far as I am aware, none of the matters that are the subject of the present disqualification application are likely to involve questions as to the credibility of evidence of Mr Mentyn. In particular, the disciplinary proceedings against A and C appear to relate to a directions hearing in respect of which a transcript has been prepared. Although I have expressed concerns in the past as to the possibility of Mr Mentyn being incapacitated by mental illness, it does not follow that I might reject submissions made by him without carefully considering them on their merits. In fact any concern as to a litigant's mental health makes it necessary to be particularly careful in considering disputed matters on their merits.
27 It is true that I disbelieved Mr Mentyn on a question of fact, but I did so without criticising his honesty. It is true that on numerous occasions I have rejected his arguments, and dismissed his applications. It is true that I have given judgment against him for $26,000, and made several costs orders against him. It is true that I have treated him as possibly being mentally ill when deciding whether to allow further time for the taking of interlocutory steps. Such a combination of adverse rulings and decisions is certainly unusual, but I do not think it follows that I must be biased against Mr Mentyn, nor that any belief or apprehension on his part that I might be biased against him is reasonable, nor that a fair-minded lay observer aware of all that I have recounted might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am now required to decide. It is appropriate to consider not only the various conclusions that I have reached from time to time in the course of Mr Mentyn's litigation, but also the reasons for those conclusions, any rulings or conclusions adverse to Mr Mentyn's opponents, and the opportunities afforded by me to Mr Mentyn to prosecute his own claims and defend the claim against him. Taking all those matters into account, I do not consider a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to questions that are to be decided in Mr Mentyn's litigation generally, or to the questions that have to be decided in these disciplinary proceedings, nor that any such perception or apprehension by Mr Mentyn is a reasonable one. I will therefore not disqualify myself in relation to these disciplinary proceedings.
28 As I have said, these applications concern a directions hearing before Heerey J on 11 June 2002. C was appearing for the vendors. A was appearing for Mr Pearce. Mr Mentyn's statement of claim in the Federal Court proceedings had been struck out on an earlier occasion. An order for the filing of a fresh statement of claim by a particular date had apparently been made and not complied with. According to Mr Mentyn's affidavit, Heerey J made an oral order extending the time for him to file and serve an amended statement of claim, but C persuaded his Honour to vacate that order and to make a cross-vesting order transferring the proceedings to the Supreme Court of Tasmania. Mr Mentyn's complaint is that the submission made by C was misleading.
29 In his affidavits, Mr Mentyn has set out an extract from the transcript of the directions hearing containing the submission by C which he contends was misleading. Mr Mentyn has underlined a number of statements which he says were factually incorrect. The quoted passage, with the underlining, reads as follows:
"HIS HONOUR: So the vendors have - the case is that there is a repudiation which was accepted.
[C]: Which was accepted, and there is a claim for approximately $30,000, your Honour, for the loss of that sale. Mr Meyer has counter-claimed, alleging misrepresentation and damages. He also, as I understand the document, seeks to enforce the contract, which cannot be done in the circumstances. ... New Zealand to take up residence in Tasmania in a property which he said didn't meet his expectations, and thus he didn't complete. It is, with respect, nonsense for him to suggest that nothing has happened in that action. The pleadings are closed, the parties have made discovery. What, if anything, has held up the prosecution of that claim is no less than four appeals by Mr Meyer to the Full Court, appealing every interlocutory order that was every [sic] made in the case by various judges, who were effectively - I use the term loosely - case-managing the matter, where Mr Meyer particularly was trying to get his pleadings into order, which occupied many months of Crawford Js time on and off with interlocutory applications. His appeals were struck out for non-prosecution in March and April of this year. There is no impediment to that action proceeding, apart from, I think, a fourth appeal that Mr Meyer has commenced, which has yet to be served, and so it goes on.
So if Mr Meyer complains, your Honour, about delays in that action, they haven't been able to be prosecuted because of his - every time an order is [sic] been made to facilitate the prosecution of the matter he appeals to the Full Court. One notice of appeal, I think, contains, something like seven separate appeals from ... and so it went on. As to the allegation the writ of fi fa has been issued and that is somehow affecting Mr Meyer, I know of no write [sic] of fi fa and I can say that one certainly hasn't been issued in either litigation I am involved in.
20 [sic] Mr Meyer, with the greatest of respect, seems to have extraordinary views as to the value of any counter claim he may make in that proceeding, which, I suppose, is replicated to some extent in the pleadings before your Honour. A proper venue, in my submission, to be [sic] dispose of all this would be the Supreme Court.
My submission is, your Honour, in reality all of this should be transferred back to the Supreme Court. I will digress, your Honour. Mr Meyer criticises the Court for allegedly stealing his money. It is appropriate that your Honour know the background to that. It is a very simple background. Mr Meyer paid the purchase price of $105,000 or thereabouts to his solicitor, Mr Pearce, who was also the solicitor for the vendors, he acting for both sides. When Mr Meyer said he wasn't going to complete, Mr Pearce paid that money to a trustee company under the Trustee Act, because he said he could make no determination as to who was the owner of that money, and who had the correct claim to it. The trustee company said, 'We have no interest in the matter.' and under section 48, I think it is, of the Trustee Act, paid the money into Court.
So my submission in a nutshell is, your Honour, the matter should be transferred back to the Supreme Court here it can be properly dealt with. That is not to say it can't be properly dealt with here, I hasten to add, but be more efficiently dealt with and come under pre-trial procedures and so forth down there.
MR PROCTOR [sic]: I support the submission of [C], your Honour.
[A]: Yes, I do likewise, your Honour. HIS HONOUR: Yes. Thank you."
30 Mr Mentyn's complaint against A is simply that he supported the submission of C. It is improper for a legal practitioner knowingly to make a misleading statement to a court as to any matter. See, for example, Dal Pont_, Lawyers' Professional Responsibility in Australia and New Zealand_ at 343 - 345. Thus, in order for the disciplinary proceedings against C to succeed to any degree, it would be necessary for a judge of this Court to be satisfied to the requisite standard that at least one of the statements identified by Mr Mentyn's underlining was misleading, and that it was misleading to the knowledge of C. It seems likely that knowledge on the part of C could be established only as a matter of inference, ie, that the judge would need to be satisfied to the requisite degree that C must have realised that what he said was misleading. Similarly, in order for the disciplinary proceedings against A to succeed to any degree, it would be necessary to prove not only that one or more of the statements identified by the underlining was misleading, but also that A knew or must have known that one or more of those statements was misleading when he supported his colleague's submission. Proof of knowledge on the part of A might be more difficult, since C's firm was acting for the vendors in their action, whereas A, as Mr Pearce's solicitor/counsel, may have had little or no involvement in it.
31 This Court has an inherent power to dismiss or stay proceedings that are groundless, futile, or certain not to succeed. Such proceedings are said to constitute an abuse of process, and to be frivolous and vexatious. The principles to be applied when a court is asked to exercise that power, or a similar power conferred by a statute or a rule of court, are well settled. The power is to be used sparingly.
32 In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, Dixon J (as he then was) said the following:
"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
33 In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 - 129, Barwick CJ said the following:
"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject ... It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same."
34 There is no reason why the case law on this subject should not apply to disciplinary proceedings against legal practitioners. In order for the disciplinary proceedings against either practitioner to succeed it would not be necessary for a judge to be satisfied that every one of the statements identified by Mr Mentyn's underlining was misleading, nor that every one of them was known to be misleading. It would be sufficient to establish that only one such statement, to the knowledge of the respondent practitioner, was untrue, exaggerated, distorted, or otherwise misleading. For either application to be successful, it would not be necessary for a judge to be persuaded that the practitioner should be struck off, suspended, or even fined. A reprimand or admonition, however mild, or even a simple finding of professional misconduct or unprofessional conduct, would suffice.
35 Counsel for the practitioners, Mr McKee, criticised the incompleteness of the evidentiary material. Upon the material before me, I do not think I can exclude the possibility that, upon a final hearing of these applications, findings might be made that one or more of the identified statements was misleading and known by either or both of the practitioners to be misleading. In the light of the authorities that I have referred to, it is clear that this is not an appropriate case for either application to be dismissed as an abuse of process, frivolous or vexatious.
36 That brings me to Mr McKee's submission that the applications could not possibly succeed upon the affidavit material that has been filed. I need not consider whether the affidavit material is incomplete. The incompleteness of affidavit material at some stage prior to a final hearing is not a proper ground for the dismissal of a proceeding. The history of these proceedings is a little unusual. In each case, the originating application was filed on 1 April 2003, during the afternoon. No affidavits were filed. The applications were listed for 28 April 2003. On that day they were called on, there were no appearances, and the matters were struck out of the day's list. On 19 November 2003, each was relisted for Monday 8 December 2003. Appearances were filed on behalf of the respondents on 27 November 2003. Mr Mentyn's first affidavit in each matter was filed on Friday 5 December 2003. Prior to the filing of those affidavits, it might well have been the intention of the respondents to have the matters called on for hearing, and then to seek their dismissal on the ground that there was no evidentiary material before the Court. However the hearing did not proceed on 8 December 2003, and it is presently impossible to predict when it might proceed. There has been no suggestion that the proceedings should be dismissed for want of prosecution. There has been no suggestion that any delay on the part of Mr Mentyn has prejudiced the chances of the respondents getting a fair trial. I conclude that any deficiency in the affidavit material is not a basis for the dismissal of the applications.
37 In each of the originating applications, Mr Mentyn is seeking an order under the Supreme Court Rules, r61, that the practitioner show cause why certain costs, which have already been taxed as between party and party, should not be disallowed. The costs in question appear to be the whole of the party and party costs of the vendors and Mr Pearce in relation to the cross-vested proceedings. Rule 61 can be invoked only when it appears that "costs properly incurred have proved fruitless to the person incurring them". The costs in question were incurred not by Mr Mentyn but by the vendors and Mr Pearce. The effect of the costs order in the cross-vested proceedings is that Mr Mentyn is required to indemnify the vendors and Mr Pearce in respect of the costs of the proceedings. Generally speaking, the costs incurred by them in defending those proceedings did not prove fruitless, since the proceedings were eventually dismissed. However, in the light of the authorities as to summary dismissal that I have referred to, the question I need to consider is whether the applications, insofar as they are based on r61, are wholly groundless, wholly futile, or incapable of succeeding to any degree. In relation to the costs charged by each practitioner or his firm, I would need to be satisfied that no item in the relevant bill of costs could be regarded as wasted as a result of the practitioner's alleged misconduct. At present I simply cannot see how Mr Mentyn could possibly succeed against either practitioner or his firm under r61, but I have not had the benefit of specific submissions from him as to the basis upon which he has sought to invoke that rule. It may be that there is some significant aspect of the history of the cross-vested proceedings that I have missed. In the words of Barwick CJ, I do not have "the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion". I will therefore not order the dismissal or striking out of the paragraphs whereby orders under r61 have been sought.
38 For these reasons, I wholly reject Mr McKee's application for the summary dismissal of the two originating applications. I will invite submissions as to the future course of these matters.
# Mentyn
A & B \[2004\] TASSC 4
(1949) 78 CLR 62
(1964) 112 CLR 125
(1983) 151 CLR 288
(1977) 136 CLR 248
(1981) 55 ALJR 12
(1986) 161 CLR 342
(1989) 167 CLR 568
(1994) 181 CLR 41
(2002) 201 CLR 488
(2000) 205 CLR 337
(1969) 122 CLR 546
(1980) 55 ALJR 12