Procedure - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Exceptions to ordinary rule - Necessity - Action seeking removal of judge from office - Application by judge for dismissal of action.

Willing v Hollobone (No 2) (1975) 11 SASR 118, referred to.

First, Third, Fourth and Fifth Defendants: P Turner

First, Third, Fourth and Fifth Defendants: Director of Public Prosecutions

Judgment Number: [2004] TASSC 5

JEAN-PAUL MENTYN v THE ATTORNEY-GENERAL (TASMANIA) DEPT OF JUSTICE (Tasmania), JUDY L JACKSON, RICHARD BINGHAM EWAN CHARLES CRAWFORD, PHILIP JACKSON, DAVID JOHN GUNSON

1 Interlocutory applications have been filed on behalf of all the defendants, except the second defendant, seeking the dismissal of this action. The third defendant, the Honourable Judy Jackson, is also the first defendant, Her Majesty's Attorney-General for the State of Tasmania. On 8 December last, the interlocutory applications came before me and I heard submissions from counsel for the applicants/defendants, after which the plaintiff submitted that I should disqualify myself, not just in relation to these applications, but also in relation to a number of other applications involving him that were before me that day.

2 For reasons that I have stated in another judgment, Mentyn v A & B [2004] TASSC 4, I have decided to reject the proposition that I should disqualify myself in relation to every piece of litigation involving the plaintiff. However he made a specific submission relating to this action, at least insofar as it concerns the fifth defendant, Crawford J, one of my brother judges. It is therefore necessary for me to consider whether, as a result of the matters referred to in that submission, I should disqualify myself in relation to this action generally, or in relation to the interlocutory application of Crawford J.

3 In 1999, the plaintiff signed a contract for the purchase of a rural property from a couple named Falcone ("the vendors"). He did not proceed with his purchase. The vendors sued him. Their action was tried by me last year. On 29 August 2003, I gave judgment for them against the present plaintiff for $26,000, and ordered him to pay their costs. I understand that that judgment remains wholly unsatisfied. The funds with which the plaintiff had intended to complete his purchase, amounting to a little over $100,000, were paid to the vendors' original solicitor, Mr Pearce, and later by him to a trustee company, which subsequently paid those funds into Court, relying on the Trustee Act 1898, s48. Those funds remain in Court. In October 2003, the vendors and a solicitor made an application to the Court seeking a charging order under the Supreme Court Rules 2000, r931, in respect of the money paid into Court by the trustee company. By that means, the vendors sought to enforce the judgment for $26,000 plus costs. Later in October 2003, Mr Pearce made a similar application, seeking to enforce against the present plaintiff an order for costs made by me in other proceedings during 2002. The two applications came before Crawford J on 20 October 2003. His Honour ordered that on 10 November 2003 the present plaintiff show cause why a charging order should not be made in each matter, and that no part of the funds paid into Court nor the income therefrom be transferred, sold, delivered, paid or otherwise dealt with unless notice is first given to the applicants. Those orders were made ex parte. The present plaintiff was apparently served with the orders. He appeared before Cox CJ in relation to them on 10 November last. As I understand the situation, he is aggrieved by Crawford J having made orders in his absence to such an extent that, in this action, he is seeking orders to the effect that Crawford J be removed from office as a judge of this Court.

4 Against that background, the plaintiff made a submission to the effect that I had an interest in the outcome of these proceedings because the orders made by Crawford J were made for the purpose of facilitating the enforcement of costs orders made by me. However it is important to remember that judges do not make and enforce costs orders on the basis of whims, idiosyncrasies, or feelings about individual lawyers or litigants, but in accordance with established principles and practices. The vendors having succeeded in their action, the order for costs made in their favour was a routine one. As a general rule, judgment creditors are entitled to enforce their judgments even when, as in the vendors' case, the judgment debtor has appealed to the Full Court. See r676(1). The provisions in the Supreme Court Civil Procedure Act 1932 and the Supreme Court Rules as to the making of charging orders do not require a judgment debtor to be served with the originating application, but with a subsequent order made by a judge that he or she show cause why a charging order should not be made.

5 The Supreme Court Civil Procedure Act, ss167 and 168, relevantly provide as follows:

"167 - In order to prevent any person against whom judgment shall have been obtained ... from ... disposing of any ... funds ... hereby authorized to be charged for the benefit of the judgment creditor under the order of a judge, every order of a judge charging any ... funds, ... under this Act, shall be made in the first instance ex parte, without any notice to the judgment debtor, and shall be an order to show cause only; and such order (if any ... funds, ... standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is or are to be affected by such order) shall restrain the officer or person having the registry, control, or management of such ... funds ... from permitting a transfer of such ... funds ... in the meantime and until such order shall be made absolute or discharged ... and further, unless the judgment debtor shall, within a time to be mentioned in such order, show to a judge sufficient cause to the contrary, the said order shall, after proof of notice thereof to the judgment debtor, his attorney, or agent, be made absolute: Provided that any such judge shall, upon the application of the judgment debtor or any person interested, have full power to discharge or vary such order.

168 - The provisions contained in sections 166 and 167 shall be deemed and taken to extend to the interest of any judgment debtor, whether in possession, remainder, or reversion, and whether vested or contingent as well in any ... funds, ... as aforesaid, as also in the ... interest ... of any such ... funds."

6 The relevant provisions in the Supreme Court Rules read as follows:

"931 - (1) An application for a charging order in respect of a judgment debtor's interest in any property of a kind referred to in section 166 of the Act or section 28 of the Partnership Act 1891 or any funds in court or otherwise is to be made in the first instance by way of an application for an order to show cause why a charging order should not be made.

(2) An application to show cause why a charging order should not be made is to be supported by an affidavit stating -

(a) the date and other particulars of the judgment; and

(b) that the judgment is unsatisfied, either wholly or to a stated extent; and

(c) the nature of the securities, interests or funds in respect of which the order is sought and the name of the person or persons in whose name such securities, interests or funds stand or are registered; and

(d) the nature and extent of the judgment debtor's beneficial interest in such securities, interests or funds.

932 - (1) An order to show cause why a charging order should not be made is to identify the securities, interests or funds in respect of which it is made.

(2) In the case of an order to show cause in respect of funds in Court, the order is to be served on -

(3) An order under subrule (2) may order -

(a) that a charge be imposed on the judgment debtor's beneficial interest in any funds in Court; and

(b) that the funds so charged be applied in satisfaction of the amount payable under the judgment and paid to the person entitled under the judgment.

935 - (1) On the return of an order to show cause, the Court or a judge may -

(a) make the order final in respect of those securities, interests or funds to which the order relates; or

(2) A charging order which has been made final has the same effect, and gives the judgment creditor the same remedies for enforcing it, as if it were a valid charge made by the judgment debtor.

(3) The Court or a judge may at any time vary or discharge a charging order which has been made final.

937 - (1) The Court or a judge may make an order that any funds in Court, or any part of them or income from them, not be transferred, sold, delivered, paid or otherwise dealt with unless notice is first given to the person applying for the order.

(2) The following persons may apply for an order:

(a) any person who has a mortgage or charge on the interest of any person in the funds in Court;

(b) any person to whom that interest has been assigned;

(c) any person who is a judgment creditor of the person entitled to that interest.

(3) The application is to be made by interlocutory application in the proceeding in which the funds are in Court or, if there is no proceeding, by originating application.

(4) The application and a copy of any affidavit in support -

(a) are to be served on every person who has an interest in the funds in Court which may be affected by the order sought; and

(5) On an application under this rule, the Court or a judge may make any order as may be just for the costs and expenses of any party or any other person against whom an order is sought."

7 Leaving aside questions of waiver and necessity, 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.

8 No question of waiver arises in relation to the disqualification application. A question of necessity arises in relation to the interlocutory application of Crawford J, but not in relation to the interlocutory applications by other defendants. Because Crawford J is a judge of this Court, a question might arise as to whether it would be reasonable to apprehend that another judge of this Court might not bring an impartial mind to the resolution of the question or questions required to be decided upon his Honour's interlocutory application. However, because any apprehension on such a basis would apply to every judge of this Court, and to the Master, and because necessity requires that a judge or the Master must sit to hear the application, the fact that Crawford J is a judge of this Court, in the absence of other relevant factors, should not result in any judge disqualifying himself, even if the fact that Crawford J is a judge of this Court gives rise to a possibility of bias. See Willing v Hollobone (No 2) (1975) 11 SASR 118.

9 The mere fact that the principal effect of the orders made by Crawford J was to facilitate the enforcement of costs orders made by me does not, by itself or in combination with the other factors that I referred to in Mentyn v A & B (supra), tend to establish that there is a reasonable basis for an apprehension that I might not bring an impartial mind to the resolution of the questions that I am required by the present interlocutory applications to decide. Those applications raise questions of law. There is no reasonable basis for thinking that the link between my costs orders and the orders of Crawford J would make any difference to my discharge of my duty to consider those questions of law on the merits.

10 The plaintiff has not filed a statement of claim. That does not mean his position is weaker than it otherwise would have been. I mention that fact only to explain why I must have regard to the endorsement of claim. The endorsement, and a preamble to it, read as follows:

"PREAMBLE: At all relevant times the Plaintiff held and holds the Free Agent Prerogative, namely Qui sui juris sit and as such claims a prior, exclusive, and peculiar right and privilege; subject to no exemption, restriction or interference.

1 The Plaintiff's claim against ALL Defendants is for Deliberate and willful [sic] Breach of the Mental Heath Act.

2 The Plaintiff's claim against ALL Defendants is for Deliberate and willful [sic] Breach of laws and rules and trusts defining and limiting the jurisdiction of the Court.

3 The Plaintiff's claim against the 5th Defendant is for the illegitimate use of judicial power, and for the Deliberate, malicious, and willful [sic] Breach of Trust being the Express Trust granted by the people to their government to appoint judicial officers.

4 The Plaintiff's claim against the 5th Defendant is for the deliberate breaching the conditions of his commission, and further for the deliberate and culpable breach of the terms of his judicial oath.

5 The Plaintiff's claim against the 5th Defendant is for making extra-judicial Decisions/orders against the Weight of Evidence and outside jurisdiction. A further claim is for the now extra-legal and so unlawful nature of the orders.

6 The Plaintiff's claim against the 5th Defendant is for all disciplinary penalties for judicial misconduct, by deliberately defying the Court & common law & statutory rules, and Constitutional & Equity protections regarding court jurisdiction.

7 The Plaintiff's claim against the 1st, 2nd, 3rd, 4th, Defendants is for failure to use Discretionary Power, and for failure to make Decisions objectively, impartially, honestly and without prejudgement as required by their Code of Conduct; and for the dereliction of duty and failure to act in accord with the Royal Commission Test. A further claim is for failure to remedy reported and/or discovered Breaches of Duty and/or unconscionable conduct.

8 The Plaintiff's claim against the 3rd, 4th, 5th Defendants is for Misfeasance by the wrongful exercise of lawful authority and/or improper performance of a lawful act; and/or for Malfeasance as official misconduct on the part of one in public office.

9 The Plaintiff's claim against the 5th, 6th, 7th, Defendants is for Deceptive, and Unconscionable Conduct, Professional Misconduct, Contempt of Court, and for ignoring fundamental law of vested rights and the Rules of the Supreme Court.

10 The Plaintiff's claim against the 6th, 7th, Defendants is for Breach of Statutory Duty including the duty not to breach court rules and for subverting the course of justice, for deceiving the Plaintiff into accepting Incompetent Documents.

11 The Plaintiff's claim against the 5th, 6th, 7th, Defendants is for Failure to acknowledge that the mandate of an incepted Undertaking is absolute; and for acting in defiance of the twin principles of Law and Justice which insist on obligations to the court being honoured unconditionally.

12 The Plaintiff's claim against the 5th, 6th, 7th, Defendants is for Violation and/or attempted violation of their own obligations to the Court incepted by their direct oath of office and stated/implied obligations to the said Free Agent as to all individuals.

13 The Plaintiff's claim against the 5th, 6th, 7th, Defendants is for Attempting to deny and/or interfere with the said Free Agent Prerogative, and for willful [sic] neglect and breach of Delegatus nun potest delegare.

14 The Plaintiff's claim against the 5th, 6th, 7th, Defendants is for Failure to acknowledge the incepted Undertaking, and/or failure to understand that though formed within and through and by a preceding legal entity (eg Defendants 1st 2nd 3rd, 4th), the incepted Undertaking is not corrupted by the legal entity's corruption, or destroyed by the legal entity's dissolution.

15 The Plaintiff's claim against the 6th, 7th, Defendants is for their Abdication from their Statutory Duty not to act without client instructions.

16 The Plaintiff's claim against the 3rd, 4th, 6th, 7th Defendants is for Breach of Undertaking as Officers of the Court.

17 The Plaintiff's claim against the 3rd, 4th, 5th, Defendants is for Crassa Negligentia, and Failure to use Discretionary Power Reasonably.

18 The Plaintiff's claim against the 3rd, 4th, 6th, 7th, Defendants is for Breach of Duty to act in Good Faith, Breach of Duty to Act Reasonably, Breach of Fiduciary Duty, Breach of Trust, Breach of Statutory Duty. Deceptive, and Unconscionable Conduct, Professional Misconduct, Breach of Good Faith, Contempt for existing statute law and for the Rules of the Supreme Court.

19 The Plaintiff's claim against the 3rd, 4th, 5th, Defendants is for Professional Misconduct, Abuse of Discretion, and Failure to exercise a Discretionary power, and for Contempt for the bona fides of Plaintiff as a litigant in person.

20 The Plaintiff's claim against the 3rd, 4th, 5th, Defendants is for Exerting undue influence, and for Breach of Fiduciary Duty.

21 The Plaintiff's claim against the 3rd, 4th, 5th, Defendants is for perverting the Course of Justice by prejudicing the right of the Plaintiff to appear conditionally, and for denying him the invested right to Appear in Court.

22 The Plaintiff's claim against each of the Defendants (1st, 2nd, 3rd, 4th, 5th) is for failing to reasonably investigate, and by failing to insist on a standard of conduct consistent with established duty of care and to do nothing that may expose a person to avoidable consequential harm, and for failing to honour and fulfil [sic] their own undertakings to the court.

The Plaintiff does not claim monetary damages from the 5th Named Defendant, rather he seeks all State determined disciplinary remedies, in particular removal of his judicial power for breach of his judicial oath, and for breach of Express Trust.

The plaintiff claims immediate compensation for the intentional neglect of a person protected by the Mental Health Act and intentional ill-treatment by all Defendants in the sum of $1,000,000 to be proportionately divided and supplied by the Defendants according to their individual liability and culpability.

Including punitive damages, exemplary damages, aggravated and general damages.

11 The applicants/defendants contend that the plaintiff's claims are groundless, futile, and cannot possibly succeed, and that the action must therefore be treated as an abuse of process, frivolous and vexatious, and therefore dismissed. They rely on both the Supreme Court Rules, r259, and the inherent jurisdiction of the Court, both of which enable an action to be dismissed in such circumstances. The principles to be exercised when applications like these come before a court were succinctly stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 - 129, as follows:

"... 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."

12 I will deal first with the application of Crawford J, the fifth named defendant. The only orders sought by the plaintiff are orders for his Honour's removal from office. Judges of this Court do not have the power to sack one another. No power to remove another judge from office is conferred on us by the Charter of Justice, any legislation, our commissions, or any other instrument. The action against his Honour therefore cannot possibly succeed. It is as simple as that. Provision is made for the removal of a judge of this Court from office in the Supreme Court (Judges' Independence) Act 1857, s1. The Governor can "amove" any judge of this Court upon the address of both Houses of Parliament. There is a precedent, under earlier legislation. Montagu J was amoved in 1847: Montagu v Lieutenant-Governor and Executive Council of Van Dieman's Land [1849] EngR 803; (1849) 6 Moo PC 489, 13 ER 773. As the action cannot possibly succeed against Crawford J, the claim against him must be regarded an abuse of process, frivolous and vexatious, and must be dismissed.

13 It appears from an affidavit sworn and filed by the plaintiff on 28 January 2004 that his claims against the sixth and seventh defendants are made on the basis that they appeared before Crawford J on 20 October 2003 for Mr Pearce and the vendors respectively. Given the general wording of his endorsement of claim, it is not possible to discern whether he relies on any other acts or omissions, or alleged acts or alleged omissions, on the part of either of them.

14 The fourth defendant, Mr Bingham, is the Secretary of the Department of Justice. It seems to me that the plaintiff regards the Attorney-General and Mr Bingham, who of course have duties in relation to the administration of justice, as somehow responsible for the course taken by Crawford J on 20 October last. When this matter was before me on 8 December last, I directed that the plaintiff make his submissions in relation to the interlocutory applications in writing on or before 27 January 2004. I did that because of a shortage of Court time. He provided written material, in the form of affidavits. Having read his writ and all the affidavits he has filed herein, I cannot identify any grievance on his part against the Attorney-General or Mr Bingham other than (a) a possible grievance as to their not having prevented Crawford J from proceeding as he did on 20 October last; (b) a possible grievance as to their not having facilitated the amotion of Crawford J from office as a judge of this Court; or (c) a grievance concerning an encounter on 19 December 2002 between the plaintiff and Mr Turner, a legal practitioner employed in the office of the Director of Public Prosecutions, who happened to appear in the present proceedings. There was no impropriety in anything Crawford J did on 20 October last. The third and fourth defendants had no duty to do anything about his removal from office. Neither of them is vicariously liable for anything Mr Turner might have done. There is therefore no discernable basis upon which the claims for damages in the writ against the third defendant or the fourth could possibly succeed.

15 I turn to consider the relevant paragraphs in the endorsement of claim. The preamble is of no assistance for the purpose of discerning a cause of action against any of the defendants. Paragraph 1 appears to refer to an alleged breach of the Mental Health Act 1963, but that Act does not create any statutory duty that could conceivably form the basis of an entitlement of the plaintiff to damages in respect of any defendant. Paragraph 2, which refers to "laws and rules and trusts defining and limiting the jurisdiction of the Court" appears to be associated with the plaintiff's grievance as a result of Crawford J having proceeded ex parte. That involved no impropriety. It follows that par2 cannot give rise to an entitlement to damages. Paragraphs 3 to 6 relate only to Crawford J. Paragraphs 7 and 8 do not contain anything from which any possible entitlement to damages can be discerned. Paragraph 9 refers to professional misconduct and contempt of court. Neither gives rise to an entitlement to damages. If the plaintiff wishes to allege that the sixth and seventh defendants have been guilty of professional misconduct, he should file the appropriate application, specifying the alleged misconduct, together with appropriate affidavit material. Similarly, if he wishes to allege that they have committed contempts of court, he should file the appropriate application, specifying each alleged contempt, together with supporting affidavit material. Paragraph 9 also alleges that the sixth and seventh defendants were guilty of deceptive and unconscionable conduct, and that they ignored "fundamental law of vested rights" and the Rules of the Supreme Court. I infer that these allegations all refer to the applications that came before Crawford J on 20 October last. No entitlement to damages can arise in respect of them. Similarly pars10 to 13 inclusive appear to relate to the applications that came before Crawford J on 20 October last, and therefore cannot form the basis for an entitlement to damages. Paragraph 13 refers to the rule against sub-delegation - Delegatus non postest delegare - without identifying any piece of delegated legislation that is said to be ultra vires as a result of the breach of that rule. However a breach of that rule does not give rise to an entitlement to damages. Paragraph 14 appears to refer to an undertaking by the sixth and seventh defendants. If either of them breached an undertaking, that would not give rise to an entitlement to damages, though it might be an appropriate subject for disciplinary proceedings. Paragraph 15 alleges that the sixth and seventh defendants acted without their clients' instructions, but such conduct does not give rise to an entitlement to damages, though it might entitle the plaintiff to oppose the application for a charging order, which has still not been disposed of. Such conduct might also entitle the plaintiff to institute disciplinary proceedings in the manner I have already described. Paragraph 16 alleges breaches of undertakings by the third, fourth, sixth and seventh defendants, but that does not form a basis for an award of damages, as distinct from disciplinary proceedings. Paragraph 17 alleges that the third and fourth defendants failed to use discretionary power reasonably, but falls short of alleging all the ingredients of the tort of misfeasance of public office, and therefore does not provide a basis for an entitlement to damages. Paragraphs 18 and 19 contain allegations of professional misconduct and contempt which, as I have said, form no basis for an entitlement to damages. Paragraph 18 alleges, as against the third, fourth, sixth and seventh defendants, breaches of a duty to act in good faith, breaches of a duty to act reasonably, breaches of fiduciary duty, breaches of trust, breaches of statutory duty, and deceptive and unconscionable conduct. In relation to the third and fourth defendants, the paragraph falls short of alleging all the ingredients of the tort of misfeasance of public office, and therefore does not reveal a basis for an entitlement to damages. The same applies to the allegations against those defendants in par19, which refers to abuse of discretion, failure to exercise a discretionary power, and contempt for the bona fides of the plaintiff as a litigant in person. Insofar as par18 relates to the sixth and seventh defendants, it appears to relate to the applications before Crawford J on 20 October last, as to which there can be no possible basis for an entitlement to damages. Paragraph 20 alleges that the third and fourth defendants exerted undue influence, but not in respect of anyone in particular, and accuses them of breach of fiduciary duty. I see no basis upon which the Attorney-General and the Secretary of the Department of Justice could owe a litigant a fiduciary duty. The allegations in the paragraph, if proved, would not result in an entitlement to damages. Paragraph 21 asserts that the third and fourth defendants prejudiced the right of the plaintiff to appear conditionally and denied him a right to appear in court. This appears to relate to the proceedings of 20 October last. The matters alleged cannot form the basis of an entitlement to damages. Finally, par22 alleges that the third and fourth defendants failed to reasonably investigate something, failed to insist on a certain standard of conduct, failed to do nothing that may expose a person to avoidable consequential harm, and failed to honour and fulfil undertakings to the Court. Breaching undertakings can give rise to disciplinary proceedings, but not an entitlement to damages. The ingredients of the tort of misfeasance of public office are not all alleged. The paragraph appears to relate to the proceedings of 20 October. The paragraph does not disclose any basis for a claim for damages.

16 Analysis of the endorsement of claim reveals that the plaintiff's claims are so obviously untenable that they cannot possibly succeed, are manifestly groundless, and are so manifestly faulty that they do not admit of argument. Under no possibility can there be a good cause of action in relation to the matters referred to. The only appropriate course is to dismiss the action as against the applicants/defendants.

17 For these reasons I order that this action be dismissed as against the first, third, fourth, fifth, sixth and seventh defendants.