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[2004] TASSC 24
Supreme Court of Tasmania
2004-03-25
Slicer J
Original judgment source is linked above.
CITATION: Mentyn v Law Society [2004] TASSC 24
HEARING DATES: 9 September, 11 November, 10 December 2003
Procedure - Court and judges generally - Disqualification for interest or bias - In general - Reasonable suspicion of bias - Application for disqualification for bias.
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, applied.
R v Pirimona (1998) 7 Tas R 407, followed.
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Parties - Litigants in person.
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, considered.
Judgment Number: [2004] TASSC 24
1 This matter arises as an issue preliminary to the hearing of an application by the Law Society of Tasmania ("the Society") for further and better particulars of the plaintiff's claim for damages. The application comprised some forty-four paragraphs and ran to six pages. Some of the particulars sought might have been susceptible to challenge as going beyond that ordinarily permitted (see generally Peet v Webb [2003] TASSC 97), but the exercise, to be conducted in Chambers, would reasonably have been expected to have taken some two hours. The ensuing proceedings occupied some 5½ hours over three hearing days.
2 At the commencement of the hearing of the application, Mr D J Gunson SC, counsel for the Law Society, made a preliminary motion that I disqualify myself "from hearing [the] application". He had not informed the plaintiff of the intended application.
3 The application was made on the ground of "perception of bias", although examination of the grounds, and arguments advanced, suggest that the real basis was "actual" bias. The application, as originally made, was for disqualification in the present matter, but during the course of submissions, was extended to any case involving an action for damages against the Society. The following exchanges between the Court and Mr Gunson, occurring during the resumed hearing on 11 November, show the position, adopted by the Society and counsel, was both considered and one maintained on instructions:
"So I submit that is an indication of clear bias being demonstrated. While it may not have been intended it to be but your Honour uttered it and that in my submission is enough for your Honour to disqualify yourself.
HIS HONOUR: On any matter involving the lawyer or Law Society?
MR GUNSON SC: On any matter involving the Law Society.
HIS HONOUR: Thank you. I'll note that. Because that's not what the Law Society says, it says in other cases but any rate. But that's, the argument is -
MR GUNSON SC: Let me put that where the Law Society is being sued for damages, by a litigant, it would be inappropriate for your Honour where there was an issue such as that before you, to hear a case where your Honour has said:
'You want to beat up the Law Society, quite properly - I don't have a problem with you trying to beat up the Law Society.'
HIS HONOUR: I understand that, thank you. And that's the position of the Law Society for the State of Tasmania through counsel -
MR GUNSON SC: That is a position that the Law Society in this case says through me as it's counsel in a case where it is being sued for damages by this plaintiff.
MR GUNSON SC: By this plaintiff or any other plaintiff -
MR GUNSON SC: - who is being sued for damages. I distinguish, and let me be quite clear about this, any matter such as matters arising under the Legal Profession Act in respect of for instance, applications for the default orders which there is no penal sanction but sought against the Society.
HIS HONOUR: Thank you and disciplinary proceedings involving practitioners? Is that the position of the Law Society?
HIS HONOUR: The Law Society doesn't have a view on that or it does?
MR GUNSON SC: I haven't - not instructed as to that issue."
and later, having cited a passage from Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, counsel repeated his instructions during the following exchange:
"Now I commend that passage to your Honour because of the phraseology. If a judge considers there is any real possibility that his participation in a case might lead to a reasonable apprehension of prejudgment of bias he should refrain from sitting, it doesn't require there to be a finding that there is that preconception-
HIS HONOUR: In any case involving Law Society on your argument. Apart from rules of account and there is on other exception, the Law Society-
MR GUNSON SC: I said to your Honour in any - given what has fallen from your Honour, and I don't resolve from the submission - what has fallen from your Honour in your suggestions as to the desirability of suing the Society it would be inappropriate for you to sit on any matter-
MR GUNSON SC: That involves a party seeking damages from the Society by way of common law-
HIS HONOUR: And that is - I understand that. I understand that and that-
HIS HONOUR: You are putting that on instructions from the Law Society. Let there be no misunderstanding about this.
HIS HONOUR: Let me finish. I don't want - this has been put to me that I should in future not sit on any case involving the Law Society in the area of the Law Society being sued for damages.
HIS HONOUR: Or where it is taking proceedings against a citizen.
MR GUNSON SC: I hadn't thought of that. I was concentrating-
HIS HONOUR: Well, you are acting on instructions. I imagine the Law Society has.
MR GUNSON SC: In respect, I am acting on instructions in respect of those issues that I put to you, that because of your Honour's utterances that it was not appropriate that your Honour continue to sit on -
MR GUNSON SC: - these matters that are currently before this court, in particular, the matter of Mr Jovanovic, the matter of Mr Trustrum and the matter of Mr Mentyn. Now I won't resolve from that.
HIS HONOUR: Are there any - I understand that. I am just trying to work out - you have just cited to me an authority, you see, which says that the judge should examine his own conscience and if he thinks that he might be preconceived then he shouldn't sit at all.
HIS HONOUR: And you - and you've, on your instructions have said it is the Law Society's view and the Law Society instructs me to put to you, your Honour, that you ought not sit on a matter where a party is suing the Law Society for damages. That is at least the minimum.
4 The escalation had occurred because during the course of the hearing, counsel sought to rely on two other actions involving a Mr Trustrum and Mr Jovanovic and the Law Society and the conduct of proceedings involving Mr Gunson and another counsel acting for the Society.
Background and knowledge required of the informed bystander
5 Although the application, as advanced, really raised as a basis "actual", rather than "perceived", bias, it is appropriate that I apply the latter test, since it is easier to satisfy and permits an examination of the matters raised, so far as is possible, from the perspective of a fair minded, disinterested, but informed, observer (Livesey (supra); R v Pirimona (1998) 7 Tas R 407).
6 Here, the observer must also have been assiduous in his attendance at court, been permitted to attend chamber hearings, understood the course of disparate actions, studied the outcome of those proceedings, and had the time to read and absorb the reasons for judgment setting out the history of, and issues raised, in those proceedings.
7 Regrettably, given the firmness of the Society's position, it is necessary to state in some little detail, the background and course of those proceedings.
8 Mr Mentyn, previously known as Mr Meyer, was a party in complex proceedings which arose out of a land transaction involving a Mr and Mrs Falcone. The history and outcome of those proceedings are stated by Blow J in his reasons for judgment (Falcone v Mentyn [2003] TASSC 79; Mentyn v Attorney-General [2004] TASSC 5). The course of those proceedings before trial was complex and tortuous. It involved actions to remove a caveat (Falcone v Meyer M163/2002), proceedings to remove the action into the Federal Court on the ground (inter alia) of the bias of all of the judges of this Court, and numerous interlocutory proceedings involving pleadings, discovery, particulars, hearing dates and the like. The majority of the judges of this Court were, at some time, involved in various stages of the action. Mr Mentyn, dissatisfied at the conduct of the solicitor who had acted for him on the original land transaction, has also commenced proceedings, the course of which is also tortuous, against that solicitor.
9 Mr Trustrum was, and remains, a person dissatisfied with the legal system and was the defendant to an action for defamation by the then Executive Director of the Law Society (Martin v Trustrum [2003] TASSC 23, Underwood J) in which he was unsuccessful. He believed himself to have been the victim of improper conduct at the hands of Mr Gunson, the Master and some judges of this Court, claiming that a judgment entered against him for default of an interlocutory discovery order, was corruptly obtained. His conduct led to contempt proceedings (Martin v Trustrum [2003] TASSC 50 and to the subsequent imposition of a suspended sentence, Martin v Trustrum [2003] TASSC 80.
10 Mr Jovanovic, a party to proceedings commenced by the Australian Securities and Investment Commission ("ASIC") (Jovanovic v Australian Securities And Investment Commission [2001] TASSC 6, Cox CJ), subsequently commenced proceedings against the Society, its office bearers (which included Mr Gunson) and others on a multiplicity of grounds said to have arisen during or as a result of his original involvement with the ASIC prosecution (Jovanovic v The Law Society of Tasmania & Ors (No 2) [2003] TASSC 65, Cox CJ).
11 Each of the persons named had made complaint to the Society seeking to invoke its disciplinary powers and, dissatisfied with the outcome, has commenced proceedings against it and its officers claiming damages. Those proceedings remain extant and it is not appropriate to consider them further, except to observe that the interlocutory steps have been both complex and protracted. Each of the persons named has conducted his proceedings in person.
12 The matters and actions involving the three persons referred to have resulted in the delivery of 14 published judgments of this Court between 1999 and 2004. The informed observer would have required many hours of court and chamber attendance to adequately understand the complexity of the actions and their enmeshment in the procedural and substantive thickets of the law.
13 The observer would also need to be aware of the following background to the various actions, including:
(1) The record of proceeding sheets on the various court files show that the majority of the judges of this Court have been involved in the interlocutory stages and have attempted at various times to improve the pleadings of the parties or explain the necessary procedural steps required before trial. I do not resile from my involvement in those processes, nor from my use of everyday language, rather than a more formal legal usage, in an attempt to have an unrepresented litigant understand the legal requirements and the seriousness of the outcome. Each of those litigants has a grievance, justified or not, about the legal process, with a concomitant responsibility on the part of the Court to show that the untrusting party will receive a full and fair hearing of their cause.
(2) Each of the unrepresented litigants has, at some stage, sought the disqualification of one or more of the judges of this Court on the ground of bias (Mentyn v A & B [2004] TASSC 4; Mentyn v Attorney-General & Ors [2004] TASSC 5). During the course of the hearing of these proceedings, Mr Mentyn sought to have the Chief Justice and Blow J disqualify themselves in matters associated with this.
(3) There is an irony in the making of this disqualification for bias application by the Society, especially so since I was the judicial officer who found Mr Trustrum to be in contempt, subsequently imposed a suspended sentence of imprisonment, and who refused to disallow the appearance of counsel on the ground of conflict of interest and bias in the matter involving Mr Jovanovic (Jovanovic v The Law Society of Tasmania & Ors [2003] TASSC 11).
(4) Mr Gunson was the President of the Law Society at the time of the hearing of this application, and remains the President. His firm represented the Falcones and the Society in these proceedings. He acted as both solicitor and counsel for the Society in the Trustrum defamation case and in the interlocutory proceedings which gave rise to the contempt proceedings. He is a defendant, both in the action brought by Mr Mentyn in [2004] TASSC 5, and by Mr Jovanovic in his action against the Law Society.
(5) Following the land transaction involving the Falcones, Mr Mentyn refused to complete the purchase. His then solicitor, frustrated by his inability to return his client's money, forwarded it to a trustee company for safe keeping until the problem was resolved. The trustee company, unsure of its own legal position and responsibility, in turn forwarded the money to the Registrar of the Supreme Court, who caused it to be deposited in the Court fund. The dilemma once created required resolution on the part of the Court itself.
14 Seventeen identified matters were raised by counsel in support of the Society's claim. To do them justice, I will attempt, so far as possible, to quote them as articulated by counsel at this hearing. For convenience, they will be considered under categories referable to each litigant in person.
15 The history of these proceedings and their outcome have already been referred to (Falcone v Mentyn [2003] TASSC 79). On 19 November 2001, three matters came before me during the Launceston sittings of the Supreme Court. The first involved an application by Mr Mentyn seeking an order for discovery to be provided by Mr Gunson on behalf of Mr Falcone and default judgment because of non-compliance. The application had only been served by facsimile on the preceding day (Sunday), not within the provided time. Mr Gunson did not attend, nor arrange for Launceston counsel to appear in explanation. He chose to send a facsimile message to the District Registrar, advising of his non-attendance because of non-compliance with the Rules and rang through the contents of that message. The second matter involved the service of a subpoena, returnable on 19 November, requiring the attendance of Mr Pearce, the former solicitor, and his production of legal files said to belong to Mr Mentyn. Mr Pearce did not attend, nor did he have the courtesy to send a message to the District Registrar explaining his non-attendance. It appeared that, as in the case of Mr Gunson, the subpoena had only been served, probably improperly, the previous day. Nevertheless, the matter required investigation and resolution. The third, and discrete, matter requiring attention, was the matter of the lodgement of Mr Mentyn's money into the Court fund by the trustee company. If the money, or portion of it, could be returned to Mr Mentyn, with his consent, then a problem caused to the Court would be solved. Two of the matters before the Court did not require or involve the presence of Mr Gunson.
16 There are three further pieces of information required for the observer's understanding:
(6) During the course of the hearing, the District Registrar, at my request, was in contact with Mr Gunson, advising him of the intended inquiry as to the disposition of the money in the Court fund. The advice included the awareness of the Court that Mr Gunson might seek access to some money in satisfaction of a costs order and a suggested amount mentioned. The matter was raised with Mr Mentyn and reference to it appears in the transcript of proceedings. During the course of the hearing of 19 November, the District Registrar advised Mr Gunson that a day later in the week could be set aside for the resumed hearing of the matter, an event acknowledged by Mr Gunson in the following exchange:
"All right. Do you recall receiving a message from the Registrar asking whether you wanted to come to Launceston?
MR GUNSON SC: I didn't receive a message to come to Launceston, your Honour. I wrote to the court or - the first thing I did on Monday morning the application was sent to my office at something like eight o'clock on a Sunday night and needless to say nobody was present. It was drawn to my attention first thing on the Monday morning. I contacted the district registrar and said to Mr Nason 'I cannot be there for a ten o'clock hearing I will write to the court immediately outlining my difficulties' and quite properly your Honour didn't proceed to deal with the application, but in my submission is that your Honour at that stage should have adjourned everything to a date to be fixed so that I could be served with the application, given the two days' notice envisaged by the rules, and attend.
HIS HONOUR: Yes and you were given that. And we decided not to go on, but that's later in the week.
MR GUNSON SC: Your offered the date on the Friday and had it proceeded on the Friday the likelihood is somebody would have been there to represent my clients."
Mr Gunson raised no objection to the course taken and no critique of the proceedings was made until this hearing on 9 September 2003, nearly two years distant.
(7) During the course of the hearing, the District Registrar, again at my direction, attempted to contact Mr Pearce, both directly and indirectly. In doing so, he made appropriate use of his own local knowledge. Again reference is made to the matter in the transcript of proceedings.
(8) At the time of the hearing on 19 November, there were concurrent proceedings pending in the Federal Court of Australia, seeking, at the behest of Mr Mentyn, the cross-vesting of the Supreme Court proceedings to that court.
17 That the Court did not intrude into the matter involving the Falcone action was acknowledged by counsel on this hearing when he stated:
"... notwithstanding that there was no representation for Mr and Mrs Falcone, nonetheless dealt with a number of matters - your Honour did not deal with the principal application of course, because there was no representation and no criticism is made of your Honour as to that - but your Honour thereafter proceeded to deal with a number of extant issues, for most of the morning and into the afternoon relating to the general status of the proceedings."
18 The first area of complaint concerned the issue of the subpoena to Mr Pearce and was articulated in the following terms:
"... during the course of the morning, your Honour indicated that you were prepared to issue a warrant for the arrest of Mr Pearce in circumstances which I'll be submitting to your Honour you should not have done so and bearing in mind this all goes back to a complaint about Pearce.
At the bottom of page 21 you addressed the issue of Mr Pearce and the subpoena again and prior to that your Honour had directed the Launceston Registrar to try and contact Mr Pearce who hadn't attended the court. At the bottom of the page you say this:
The registrar tells me he's spoken to Mr Pearce who said he wasn't coming, and he said for a number of reasons.
I'll come back to what my response is to that, but his technical point is that he wasn't properly served with the subpoena. So I need to first of all satisfy myself that he has been. The message that I sent back to him through the Registrar was that if I find that he has been served in accordance with the rules I will issue a warrant for his arrest and have him brought before me. I have suggested to the Registrar that he find out from Pearce - from Mr Pearce how long it would take to get from where he is now to here, but I'll need now first of all to find out whether he's right. And I'll just...'
HIS HONOUR: Right, now this matter has nothing to do with you at all, does it?
MR GUNSON SC: Well, the Falcones were parties to this action -
HIS HONOUR: No, no no. What was before me were a number of things - separate things and one of them was a claim that he had served a subpoena on Pearce as an intended witness or something and I was dealing with the Pearce matter - I didn't need you to be there for that. It was a matter between Meyer - or Mentyn - sorry Mr Mentyn and Pearce.
MR GUNSON SC: No, no - with respect, no, your Honour because first a subpoena can only be issued for a trial or a hearing of a matter that requires the subpoenaing of documents. Secondly Mr Pearce was the solicitor to Mr and Mrs Falcone as well -
HIS HONOUR: I understand that. I actually understand some tiny parts and fragments of the law. I had before me a job lot of complaints by Mr Mentyn one of which was that he'd issued a subpoena against Mr Meyer - against Mr Pearce and I had said to him - don't worry about whether there was a hearing on that day. He was claiming there was a hearing. He was claiming that he was entitled to be heard on this matter on this morning. And he had subpoenaed Mr Pearce, I think for the purpose of presenting documents - I've forgotten what it was now -
HIS HONOUR: Right. And he wasn't there. Now, either Mr Pearce had a crystal ball and knew there was to be no hearing or had made a legal decision that he was not required to be there because there was no hearing, or he should have been there. Now, that's what I'm saying there. That's got nothing to do with the Falcones and it's got nothing to do with you. What it did have to do with was an application by Mr Mentyn to have the man brought there, and my statement ought be seen in that light. If he had been properly served and if there had been appropriate notice given and the like, for the practitioner not to respond to such a direction from the court might have involved a warrant or will, if you like. I was the one who took - made enquiries. When I satisfied myself that he had not properly been served then that was the end of it. Now for you to say that I was proceeding on a matter in your absence and in the absence of a party is not true. It was a discrete matter, trying either to punish Pearce or have him brought before the Court which stood on its own. Now whether there were other reasons for proceeding - let's take the example that you'd got - that you'd turned up and got an adjournment at ten o'clock and gone home and I was still left with the subpoena issue, that's a stand-alone matter.
MR GUNSON SC: I, with respect your Honour, disagree with that.
MR GUNSON SC: And for the reasons I'll outline to your Honour. The reasons I disagree with it is that these proceedings, regardless of what the dispute between Mr [sic] and Mr Pearce might have been insofar as the proceedings are concerned, were inter partes and they remain inter partes at all times and your Honour should not have proceeded to deal with any issue relating to any matter, with respect, in the absence of counsel or legal representation for other parties to the action.
HIS HONOUR: All right. Do you recall receiving a message from the Registrar asking whether you wanted to come to Launceston?
MR GUNSON SC: I didn't receive a message to come to Launceston, your Honour. I wrote to the court or - the first thing I did on Monday morning the application was sent to my office at something like eight o'clock on a Sunday night and needless to say nobody was present. It was drawn to my attention first thing on the Monday morning. I contacted the district registrar and said to Mr Nason 'I cannot be there for a ten o'clock hearing I will write to the court immediately outlining my difficulties' and quite properly your Honour didn't proceed to deal with the application, but in my submission is that your Honour at that stage should have adjourned everything to a date to be fixed so that I could be served with the application, given the two days' notice envisaged by the rules, and attend.
HIS HONOUR: Yes and you were given that. And we decided not to go on, but that's later in the week.
MR GUNSON SC: Your offered the date on the Friday and had it proceeded on the Friday the likelihood is somebody would have been there to represent my clients. But you see, it's the whole of what occurred that day that we say -
HIS HONOUR: All right. At any rate, was a warrant issued against Mr -
MR GUNSON SC: No, your Honour didn't do that because you were ultimately satisfied that Mr Menthyn [sic] hadn't served Mr Pearce in accordance with the rules, hadn't provided him with conduct money and in the concluding pages of that transcript -
HIS HONOUR: So tell me what, then, is the error that the disinterested observer down the back would take exception there. The message that I sent to Mr Pearce -
MR GUNSON SC: It's the totality of what occurred that day - the business concerning Pearce is but one aspect of it.
HIS HONOUR: Yes, I understand that. We are examining each one.
MR GUNSON SC: In the first instance your Honour indicated to Mr Menthyn [sic] without satisfying yourself as to whether or not that Mr Pearce had been properly served, that you said initially at page 5 'I can tell you if he's not here I am prepared to issue a warrant for his arrest.'
MR GUNSON SC: And my submission to your Honour is that that was - what I would say to your Honour is in cautious, what your Honour should have said to the defendant was `if I'm satisfied ultimately Mr Pearce is not present and I'm satisfied that he has been lawfully served in accordance with the rules, and I have a discretion as to what I do about it, and I can take the following steps.'
HIS HONOUR: So, going back to 21, the message that I sent to Mr Pearce - this is not a statement to Mr Mentyn - the message that I sent to Mr Pearce through the Registrar was that if I find that he has been served in accordance with the rules -
MR GUNSON SC: 'I will issue a warrant' when it is not necessary for a warrant to be issued - that's a discretionary matter completely and your Honour may well have said, 'well look, I'm not prepared to accede to a warrant because the Falcones aren't here. Whatever it is you want to extract from Mr Pearce for failure' - should you have stood it down til later in the day. They had a right to be present to address the issue as to what documents might be produced by Mr Pearce.
MR GUNSON SC: Because Mr Pearce represented them as well. Mr Meyer might be seeking documents that were privilged [sic].
HIS HONOUR: Right. 'But now, but I need now first of all to find out whether he's right. And I'll just park that for a moment.' And then I go on to the second matter that I was raising, which followed from some order of Underwood, J I think, and that didn't require your attendance.
MR GUNSON SC: Well your Honour, I can take you to the passage at page 24 of the transcript, your Honour said this: Mr Meyer given advice to your Honour how he'd tried to fax the subpoena to Mr Pearce and how he posted them, and Mr Pearce said he didn't get them, and his Honour said at page 24 line 706:
Yes, I understand that. I understand that. As I said the message which I have sent was If I find that he has been properly served a warrant will issue under my hand to have him brought before the court. I don't take disobedience by solicitors lightly.
HIS HONOUR: And you've left out - I'm having to do all the work, aren't I - where that is_, 'because ordinarily faxing doesn't count as service, that's the_ problem with the subpoena', I say. This is a discourse.
As I understand Mr Pearce's position, he said (1) it's illegible and this service by fax isn't proper. Don't know. All right. I don't know and Mr Nason hasn't come back to court. He's off doing that now and I thought I won't waste time, I'll get on with it and he'll come in and tell us what he's found out.
At 31 your Honour addresses issues relating to what had occurred following the caveat proceedings in which Mr Menthyn [sic] had been unsuccessful and you said this:
Now I'll come back to you with something else in a moment. At the moment on the Pearce matter I am minded that we do nothing until 2.15 and see what the constable has found or whatever, and we can take it further.
I just pause to make the observation that you had directed by that stage, the District Registrar in Launceston to communicate with the police on the east coast and have them try and find out where Mr Pearce was.
MR GUNSON SC: Oh, it's earlier on. Can I come - can I flag that and come back to it?
HIS HONOUR: No, please, while I've still got it in my mind. I know that - I know that that was - came back from Mr Nason - I thought he acted - it doesn't matter in a way, I'd asked him - we'd tried to ring him - that was the problem.
MR GUNSON SC: The problem was Mr Pearce has - operates in three places, Swansea, Bicheno and St Helens, and couldn't be found and the police had become involved in trying to find him.
HIS HONOUR: Yes, I understand that. The question is, did I direct the Registrar to use the police.
MR GUNSON SC: Just bear with me. Bottom of page 10 seems to be one of the lines we're looking at today, and that is to find out where Pearce is, because I presume you want that documentation as part of your case.
MR GUNSON SC: Page 20 Mr Nason comes back into the court:
Your Honour, I've conducted - contacted both his offices (that's Mr Pearce's) A message just says he's not working today. I've tried - I've tried A Pearce at Swansea...
HIS HONOUR: 'And I'll retire and you have a talk with Mr Nason' - 20. I'd be surprised if I'd asked the Registrar to use police. I'd certainly invited Mr Mentyn to talk to Mr Nason at 20, and at some stage the Registrar has spoken to Mr Pearce, we know that from 21. I'd asked Mr Nason to ask - to find out from Mr Pearce time, and then I go into Mr Mentyn saying ' You prove that you've served him properly'.
MR GUNSON SC: I contacted the police and they are sending a constable around to his residence.
HIS HONOUR: I understand that. Yes, I've marked that.
Your Honour, I have been unsuccessful in contacting Mr Pearce at home on two occasions. I contacted the police and they are sending a constable around to his residence to make contact and they'll ring me as soon as they've done that.
And the message that you sent was that his Honour was not - was ungruntled.
Yes, your Honour, I am awaiting a call from the police.
HIS HONOUR: So can you tell me how long it is from Swansea to Bicheno, etc, etc,
HIS HONOUR: Yes. But you've turned that into that I had directed the Registrar or told the Registrar to use the police -
MR GUNSON SC: Well, if it's not true I withdraw it. I assumed that to be the case because I assumed that a registrar wouldn't get the police involved tracking down a missing lawyer without some direction, but if that's not the case and Mr Nason's embarked on it on his own, I withdraw it completely.
HIS HONOUR: Do you want me to go and ring Mr Nason?
HIS HONOUR: Do you want me to go and ring Mr Nason?
MR GUNSON SC: Not at all, your Honour. If your Honour tells me that I accept it, obviously. But in any event, the police somehow or other got involved when arguably they shouldn't have got involved in tracking down a lawyer who had, with respect, done nothing wrong at that stage.
HIS HONOUR: I'm sorry - I'm sorry - police got involved when they should not have got involved.
MR GUNSON SC: Yes. There was no basis for the police to be involved tracking Mr Pearce down. He'd not breached any law - he hadn't breached any court order.
HIS HONOUR: Well, I thought that's what this debate was about. Mr Mentyn claims that he served a subpoena. Mr Mentyn claims that the man hasn't answered. I'm trying to sort out what it is - and police do get involved actually, in service of subpoenas and they do get involved in finding out. But I made an assumption, it being Tasmania, that the Registrar has got his own network throughout Tasmania because he is often getting subpoenas served or warrants issued or houses sold, he's involved in that Mr Gunson -
HIS HONOUR: But he rings the - Mr Pearce, he can't get him on the phone, he rings the local police and says 'Do you know where young Pearce is' and the policeman says ' oh, I'll go round and see him' Now, If you want to elevate that into a claim that a judicial officer was in a way misusing public officers or that the Registrar of the Court was misusing public officers and in fact there is a taint there of corruption, isn't there - or misuse of power - then you do it, but you'll do it on the basis of material.
MR GUNSON SC: I'm not suggesting corruption, your Honour - I'm not suggesting -
HIS HONOUR: You added in the words 'police should not have been involved'.
MR GUNSON SC: I say that the Tasmania police should not have been involved in tracking down Mr Arthur Pearce for whatever reason until such time as a lawful order had been issued by this Court to bring Mr Pearce before the Court for a contempt of the Court or disobedience of a court's order, or failure to comply with a subpoena at which stage their role is clear and they must act in accordance with the court's directions.
HIS HONOUR: All right. Then I will make enquiries of the Registrar, Mr Gunson and I will re-visit this matter.
19 The service of the subpoena was a discrete matter not directly involving the Falcones. Mr Pearce was not to know whether or not Mr Gunson would be attending the court for a hearing and his obligation was to answer the subpoena. It would appear that Mr Pearce had acted as the solicitor, both for Mr Mentyn and Mr Falcone. Any claim of privilege attached to the file favouring Mr Falcone could readily be identified by the solicitor. The issue was non-appearance to answer to the subpoena. No message was received from Mr Pearce explaining his non-attendance until he was contacted by the District Registrar and the Court was entitled to make enquiry. Non-response to a subpoena, absent good reason, can constitute contempt and a way of ensuring compliance is arrest. For a solicitor to show disdain or indifference to a court process is more serious. The message complained of, sent through the District Registrar, was intended to show the seriousness of the matter to the solicitor, to achieve a quick response to the question of service, and to demonstrate to a litigant in person that his cause was treated seriously. The selective extracts relied on by counsel do not reflect the course or substance of the proceedings. That selectivity makes a reading of the transcript of 19 November (107 pages), more confusing. I explained my course of action to counsel in the following terms:
"I understand that. I actually understand some tiny parts and fragments of the law. I had before me a job lot of complaints by Mr Mentyn one of which was that he'd issued a subpoena against Mr Meyer - against Mr Pearce and I had said to him - don't worry about whether there was a hearing on that day. He was claiming there was a hearing. He was claiming that he was entitled to be heard on this matter on this morning. And he had subpoenaed Mr Pearce, I think for the purpose of presenting documents - I've forgotten what it was now -
HIS HONOUR: Right. And he wasn't there. Now, either Mr Pearce had a crystal ball and knew there was to be no hearing or had made a legal decision that he was not required to be there because there was no hearing, or he should have been there. Now, that's what I'm saying there. That's got nothing to do with the Falcones and it's got nothing to do with you. What it did have to do with was an application by Mr Mentyn to have the man brought there, and my statement ought be seen in that light. If he had been properly served and if there had been appropriate notice given and the like, for the practitioner not to respond to such a direction from the court might have involved a warrant or will, if you like. I was the one who took - made enquiries. When I satisfied myself that he had not properly been served then that was the end of it. Now for you to say that I was proceeding on a matter in your absence and in the absence of a party is not true. It was a discrete matter, trying either to punish Pearce or have him brought before the Court which stood on its own. Now whether there were other reasons for proceeding - let's take the example that you'd got - that you'd turned up and got an adjournment at ten o'clock and gone home and I was still left with the subpoena issue, that's a stand-alone matter.
MR GUNSON SC: I, with respect your Honour, disagree with that.
20 It is claimed that improper advice was given by the Court in relation to his case. Selective quotation by counsel requires analysis of the whole of the transcript to put that claim in context. Mr Mentyn was obsessed with his case and disjointed in his formulation of it. He was, perhaps understandably, unable to maintain a thread of argument and would move tangentially from one complaint or problem at will. Met with answer, he would raise a totally different issue or complaint. It is a problem common to many litigants in person. The advice given to Mr Mentyn was attempted in the terms of a statement made by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150; [1994] HCA 23; (1994) 68 ALJR 509 at 511 that:
"A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy."
21 I have attempted to identify the areas of advice proffered in the following categories:
(1) The plaintiff requested, unsuccessfully, for an ex parte hearing and followed with a request for dismissal, to which I replied.
MR MEYER: Well, I can still ask for the dismissal of their case. The basis that there is nothing before the court.
HIS HONOUR: I can't. Look, I have read your - I think you have got a good case. Right. And I want to walk you through some things since they are not here. But the one thing I can't do for you today is to abridge the two-day rule. They are entitled to be here, they are entitled to argue. They are entitled to two days' notices. With the best will in the world I can't even help you get to the first step because of that."
He had an arguable case on the pleadings. The problem was that it was not properly articulated. There was nothing indicative of bias in that exchange.
(2) Advice as to cross-vesting. The Federal Court had rejected an attempt by the plaintiff to have it "assume" jurisdiction. He was advised as to the problems associated with running concurrent cases in differing jurisdictions.
(3) General advice. Counsel quoted the edited passages in the transcript of 19 November appearing at 47 - 49 in support of his claim for bias disqualification. The submission overlooks the fact that the confused discourse formed part of a process of attempting to persuade Mr Mentyn to take steps to have the money paid into court withdrawn, at least in part, a discourse which commenced much earlier on, as evidenced by the transcript at 26. The discourse was confused because Mr Mentyn kept changing course and raising, seemingly at random, disparate and unconnected matters. Mr Mentyn was repeatedly told to keep to the issue, but the discourse was repeatedly returned to the issues of the payment in the capacity of Mr Falcone to claim portion of it in satisfaction of his costs, already taxed, following the caveat proceedings and the procedure required by the Supreme Court Rules 2000, rr794, 795 and 907. The attempt proved futile, as the following exchange evidences:
"You've got some money that got into this court somehow or other. How do you get it out? Well the way you get it out you start separate proceedings in your name which probably says, In the matter of the Trustee Act 1898 and in the matter of an application by John Andrew Meyer. What's the application seek, It seeks an order for the payment out of monies being the proceedings relating to a fund paid into court. And what you're seeking is that it goes to you. Right you put in that an affidavit, it's only got to be a brief one which says how it got there. We know - well even if you put in an affidavit which says, I, John Meyer, refer to my affidavits filed in the matter but it's probably better to do a simple thing, I did a transaction and the lawyer paid it and he didn't have any right to and it got to me - it got to Trustees and it's got to the court and I want it back. Fairly simple. Now if you did that in the matter of the Trustee and so on then a judge has power to grant your application. Now the only downside that I can think of is that the Falcones might and you would say, would, might seek to freeze the amount of money which has been taxed as costs so you wouldn't get the $110,000, the other money would remain in court or they'd try and garnishee it to 14. So I can't help you then make that decision, that's not - it would be wrong for me to try and help you make that - that can only be a John Meyer decision and I'm not going to wear responsibility for it.
MR MEYER: Before we leave number 90 your Honour, number 90(e) says, Payment into court of any money or security in the hands of an executor, administrator or trustee has to be done in front of a judge which was my understanding.
MR MEYER: But your Honour there was never an application in front of a judge in chambers.
HIS HONOUR: No precisely, that's why I'm asking you to do it.
MR MEYER: No but I'm saying they didn't pay it in according to the rules, that's what I'm saying.
MR MEYER: Well the two clauses - 794 contradicts 90(e) doesn't it?
HIS HONOUR: If you would listen to me, this is getting the money out. It got in.
MR MEYER: But how it got in there, I say is illegal because they didn't have a hearing.
MR MEYER: Well I am. I've got to pay for this new hearing.
MR MEYER: I mean you said to - I didn't want to have to multiply yet another action in the court. That is not - 90(e) doesn't apply to Tas Trustees.
HIS HONOUR: No. Think like a chemist. The Trustees get the money, they don't want it, they don't want it to burn them.
HIS HONOUR: They write to the court, they don't write to the court under rule 90, nothing to do with them, they're getting it in, they pay it in, in accordance with 794 or whatever it was, a different rule.
MR MEYER: So they're different sorts of Trustees from what 90(e) -
HIS HONOUR: No they're the same Trustees but 794 permits them to pay it in-
MR MEYER: And I understood that 90(e) told them how to pay it in by getting in front of a judge in chambers.
HIS HONOUR: Oh you might - look I have no idea and I'm not even going to think about it, you might be right.
HIS HONOUR: I'm not going to go and do 10 hours research on that point, you might be right - I'm trying to get it out.
HIS HONOUR: Now you can prove they paid it in wrongly - whoopy do dah - you've still got to get it out.
MR MEYER: Mm. That gives me a basis of action under negligence though.
HIS HONOUR: No it's the house. When I finish with this you can sue anyone you like, you can get off the electoral roll, right, stop thinking down the track because you'll never get anywhere.
MR MEYER: You've answered the question thank you your Honour.
HIS HONOUR: So if you made an application to the court and made it under (y), that is - which is money paid into court, we don't know how it got there, it could have got there illegally, it could have got there by accident, it could have got there because somebody banked the wrong cheque, don't care for the purpose of this - to get it out. Now you might be met with the Falcone's saying, Well not the tax costs. Now I probably can't help you on that, that's probably right. I'm told because you told me and I think I can find it somewhere, that in court their counsel, Falcone's counsel said they made no claim on the money except the costs issue."
The Falcones had an interest in the retention of the money, sufficient to satisfy their order for taxed costs. That interest was respected and the procedure for withdrawal required notice to the Falcones as interested parties:
MR MEYER: Do I have to serve it on them, I do don't I or can't I serve it on Gunson, he's their lawyer?
HIS HONOUR: He's not their lawyer for this 100 grand though, see the law breaks things up into little boxes.
HIS HONOUR: He's their lawyer for the Falcone case.
HIS HONOUR: At the moment he's not on the record as their lawyer. I have no doubt he is their lawyer for that but on the court record there is no 100 grand problem.
MR MEYER: Well that's no trouble your Honour. I've got a very good process server on the mainland who will deliver it the same day.
HIS HONOUR: Right well that's 21 days so if you just note these rules, 90(y) is where you start, 123(1) is your problem for people in Tasmania but I might just solve that problem for you in a minute. 123(3) is-
He was further advised of the power of the Court to dispense with service on persons who had no claim to the money, as in the case of other legal firms and the trustee company. In discussing the issue of dispensation, I stated that the interest of the Falcones would remain protected, advising:
"A person filing an application under subrule (1) and that's your main application_, may seek an order that service on a person requiring to be served by subrule (2) be dispensed with by so stating in the application._ Now if you file an application under 90(y), the one we talked about earlier and in your paragraph 2 seek an order under that subs(3), seeking dispensation of service on Rae & Partners, Archer Bushby and Falcone - do them all and you get a return date from me on Friday, I may well give you a 90(y) order for all the money except the taxation of costs - I really should let the Falcones fight about that.
MR MEYER: That's an interesting play on words your Honour, very interesting.
HIS HONOUR: I know. That would protect the Falcones' interest because I'd only give you leave to dispense with service against them on condition that only a certain amount of money was paid out and that the 14 stays in kitty.
HIS HONOUR: Now that protects them - I'm not saying whatever happens to that and then they can apply to take it out for all one knows - as a judgment but it protects them but it doesn't put you into a 21 or 23 day service rule and I could hear it on Friday. Mr Gunson would - I'll have the Registrar fax a copy of your application to him - he can turn up if he likes, we don't need a service timetable for that because we're only dispensing with having to serve them."
The exchanges can only be understood in the light of the attempted exercise of having the money question resolved without prejudice to the interests of Mr Gunson's clients. It could not be seen as an exercise in bias.
(4) Advice as to representation. Counsel articulated the complaint in the following terms:
"Well, the next issue your Honour I want to deal with is, that your Honour, in my submission provided advice to Mr Menthyn [sic] which was inappropriate to provide to him as to a choice of counsel to represent him.
MR GUNSON SC: This issue - this issue is at page 25 of the transcript where you Honour said this:
And to get to the issue which is about the house - right - read my lips as stupid Senator Bush said before he became president - it's the economy or whatever the statement is. It is about the house, and I don't think he was trying to get that on the table. At any rate, I'm only saying I can't give you advice. I can try and do the best with what the material that you have placed before the Court and work through that. When I asked before had you thought there was - getting some legal advice to get you out of the minefield and back onto the battle ground - sorry to use those analogies, there is a lawyer who has experience of appearing in the High Court who is Tasmania and who is experienced in the doctrines of equity and commercial law, and he is the sort of person who, if I were in that sort of trouble, I would probably chose - I would probably go to him myself and that is Mr Tree - a Peter Tree.
Now it's my submission that that was inappropriate advice for your Honour to give to Mr Menthyn [sic] in his capacity as a litigant, and at the bottom of the page you said at line 759,
And maybe I'm incautious in making (it says him suggestion, but this suggestion I think it means_) - you may not like him at all, but all I'm saying is that if I were in this dilemma and I was choosing, he would certainly be one of my first picks_"
Again, the passage must be placed in context. The passage selected by counsel immediately followed a complaint made by Mr Mentyn about judges, in the following exchange:
"HIS HONOUR: That brings us back to this money. The only complication that I can see - look, I will stop. I can't act as your lawyer. All right? I can't give you advice. The State doesn't pay me to do that. The State pays me to sit here. Because - and also once the judges start giving litigants advice and the judge gets it wrong, well, the person goes before another judge who says I have never heard such rubbish in my life.
HIS HONOUR: They are likely to be fairly grumpy, aren't they?
MR MEYER: We have already had that in reverse, your Honour. Where Crawford J gives all the advice to the other side on how they should proceed against me and those are some of the issues on points of rule I wanted to make.
HIS HONOUR: I am not sure - sorry, about that - I won't buy into that. I am not sure that is right. I think he was genuinely trying to get this thing put on the table.
"MR MEYER: Oh, yes, I have heard of him. I understand he is a barrister, your Honour.
HIS HONOUR: You only need to go into a firm and say this is too complex for you, give me a consultation with a barrister.
HIS HONOUR: And maybe I am incautious in making him suggestion. You may not like him at all. But all I am saying is that if I were in this dilemma and I was choosing, he would certainly be one of my first picks.
MR MEYER: Thank you. Well, a good friend of ours has also recommended him as well."
The suggestion was made following discussion about the plaintiff not trusting the legal profession, his retention and dismissal of an experienced named lawyer, disclosure that his own son was a lawyer in New Zealand and comments made by me which included:
"I just don't want to see you caught in this forest and so on without anyone with a torch."
"You really do need a good guide to get you through the minefield."
The provisions of the name of counsel might have been incautious, but reflected the fact that other solicitors in Launceston had not been acceptable to the plaintiff and the nature of his case required a practitioner experienced in commercial law and able to deal with difficult clients. No instructing solicitor was nominated. Reference does not afford a basis for a claim of bias either actual or perceived.
22 That Mr Mentyn has an intense dislike of Mr Gunson was obvious in any reference made to him. It is rare that adverse comments by an opposing party affect counsel, given the robustness of the profession and the demands of the discipline. Mr Gunson referred to paragraphs in support of his argument:
"MR GUNSON SC: Now, you get to the top of page 39, about four lines down you say, following Mr Meyer's speaking about his affidavits, Mr Meyer says first of all:
Well, just before we go any further because we are a year down the track and I haven't been reading all my affidavits, so I'll actually need to formally read them into court so they are actually lodged into the court file formally.
HIS HONOUR: No no - you - well, you can't do it today because we still - we've still got the Gunson problem."
"'Just be very careful, you're seeing me in a reasonably - and if Mr Gunson were here I was going to (inaudible) a bell, he would get one as well'."
23 The "Gunson thing" had been earlier mentioned during the November hearing when, in relation to the inability of the Court to deal with Mr Mentyn's preliminary application, I said:
"I can't - I can't get the Gunson thing on today because-".
The term was used as a shorthand reference to the non-appearance of Mr Gunson because of the failure of the plaintiff to serve his process on his opponent within time. The passage identified by counsel did not replicate the totality of the passage of the statement made on 19 November, namely:
"No, no, you - well, you can't do it today, because we have still got the Gunson problem. What normally happens is, you file all your affidavits. The case starts. You stand up and say, I seek to read in - you do it before the judge hearing the case. I formally read into evidence, my affidavit of such and such and the affidavit of Fred and the affidavit of such and such. Then your opponent might say, Objection, because it is hearsay or it's irrelevant or whatever. The judge then says, well, this bit, this bit, this bit, this bit, this bit - yes, they go in. Yes, you are right, that bit's hearsay. Yes, you are right, that bit is hearsay so I have only got paragraph 1, 2, 3, 15, 16, 17. Now it's on the table. The next step is, your opponent is entitled to cross-examine the maker of the affidavit. They have got to give notice in advance and so on. Then the person who swore the affidavit goes in there, cross-examination, so the judge now has your affidavit which is read into evidence before him or her, an argument about which bits were secondary evidence or hearsay evidence, that's fixed. Then he gets the evidence from the witness being cross-examined. He says - he gives more detail and so on and then you have got - that's a box of evidence there. Then you come to the next affidavit and you do the same thing. At the end of the day then the judge has a number of boxes of evidence and away we go."
The use of the term was explained by me during the September 2003 hearing, immediately following counsel's quotation of the impugned passage in the following terms:
MR GUNSON SC: I don't know what the problem with Gunson is.
HIS HONOUR: You weren't there. Can't we at least - you may erect conspiracy theories till the cows come home. Can't you read that. 'Of course you can't read your affidavit into evidence now, because we've still got the Gunson problem - you haven't served him. You haven't - you've sent a fax on a Sunday afternoon to him - this matter is not going to go on in that way. You can't read your affidavits in here.' It's turned into -
MR GUNSON SC: But it's not the Gunson problem. It's a problem --
MR GUNSON SC: Your Honour that Mr Menthyn [sic] has not served the solicitors -
HIS HONOUR: because we have still got the problem of the rule in that you have failed to serve the solicitors - this is in the real world Mr Gunson.
HIS HONOUR: Well then I'm telling you what the reference is.
MR GUNSON SC: Thank you, your Honour. I understand that. Now -
HIS HONOUR: We've still got the Gunson problem. It makes sense to anybody apart from a paranoid.
MR GUNSON SC: If your Honour's suggesting I'm paranoid -
HIS HONOUR: No, I'm not suggesting that you're a paranoid and we can play games - I can play games in equity as well. I'm trying to get back into the real world. Of course we had the Gunson problem. The Gunson problem was that he hadn't been served, and this man was not going to get his hearing on, and I was not going to deal with a myriad of complaints which wandered - in Wordsworth's words - all over the place. You file your affidavits, the case starts. You stand up and say ' I seek to read it.' You do all that before the judge hearing the case - I formally read it into it.' Then your opponent might say ' objection because it is hearsay and it's a bit irrelevant' The judge might say 'well, this bit, this bit, this bit -' I'm taking him through why he can't read in his affidavit because he's not doing in accordance with the form - why - because there is no opponent, this is not a hearing and you are not there. And you are not there for a very good reason - we know that because he hasn't served you.
MR GUNSON SC: But this, with respect, is what my real complaint is about. For whatever reason, it doesn't matter for what, but your Honour embarked on this one on one occasion where you addressed so many issues with Mr Menthyn [sic] that it is the beginning, we say, of the conduct which would lead the impartial informed bystander to the conclusion that we say he could conclude.
HIS HONOUR: All I was doing was pointing out the meaning to that sentence.
MR GUNSON SC: All right. I'm grateful to your Honour having done that. I am not suffering from paranoia - I just take the view that it was inappropriate for your Honour to address it that way and that's my submission."
The second impugned passage was no more than a statement that any person, counsel or litigant in person, who made an improper allegation about the integrity of the Court would attract the displeasure of a judicial officer. The words selected by counsel have a different import when seen in the following context:
"MR MEYER: Yes it's on the court - we've got that on the - there's actually two references, one of them has been removed, one of them stands -
MR MEYER: I made reference to the first one in my letter to Cox J and they quickly slipped that out of the court record.
HIS HONOUR: Well you be very careful, you be very careful.
MR MEYER: I know what I hear your Honour and I mean there were lots of people heard them say that they - Gunson said-
HIS HONOUR: Just be very careful, you're seeing me in a reasonably - and if Mr Gunson were here and I was going to (inaudible) a bell, he'd get one as well.
24 At the resumed hearing of these proceedings on 11 November 2003, counsel raised in detail a further basis, correctly placing it in the context of the November attempt to resolve the "money in Court" issue and the ensuing exchange accurately reflects my response:
"Page 94 your Honour. Is the next series of passages of the transcript to which I wish to refer. And the top of the page line 2931, you say:
'I understand that. What I was going to offer you was that you don't have to file a further application on the Gunson thing, that I arrange for a pre-trial conference to be held in Hobart where I will see whether the matter is ready for trial, that'll have to be - Gunson will have to be there, you'll have to be there, if I determine it's ready for trial and if nothing else procedurally to be done and I certify it's ready for trial you can go into the court list. You may not want to stay here I understand that, but-'
and I read that as a preliminary, and then Mr Meyer says:
'That still doesn't preclude cross-vesting are you saying?'
'No but you'd need to made up your mind. I don't want to be mucked around about on that. If at the end of the day you are going to cross-vest then it is just a waste of everyone's time.'
'So you are saying you would hear that in December?'
'Yes, which would require you to be there, which would require Gunson to be there and I can tell you that I'd be saying, I'd be saying, okay I understand the point about discovery but at any rate, you've made it after the time it's been made, Mr Gunson, you accept that Mr Meyer has made discovery and there might be a fight about that and I'll say Mr Meyer have you seen the their documents, in other words, you've got a right to inspect them, have you inspected their documents. You'll say yes or no. Okay you haven't even been shown them yet, I will fix a time when you can go to their offices and inspect documentation'
and so forth. I mention that in context as for the rest, because then you go over to page 95, and your Honour says again, halfway down line 2980:
'No, no, I don't need that. What I was trying to tell you was on the pleadings, it looks like on the pleadings if you've got a good case, that doesn't guarantee you'll win it.'
Which brings me back to that earlier point. And then at 96 having discussed what your Honour would do with pre-trial management, and I don't criticise your Honour for wanting to take some pre-trial management role of the matter, but at 96 I say at this stage you go too far again. Halfway down the page where there's a line 3007, you say this:
'If you end up being stuck or you decide to continue with this action I can do a pre-trial conference in December with you and Gunson and try and kick heads and so on and try and shake it into shape so you actually get a trial on the merits. And you want to have a chat with the Registrar and I'll come back when you're ready, about your timing.'
We comment on that adversely and submit that that was inappropriate for your Honour to suggest that you would, to use your Honour's phraseology, 'kick heads'.
MR GUNSON SC: No. Your Honour would not kick heads, your Honour would listen patiently as your Honour does to counsel make submissions-
HIS HONOUR: Yes, and if I think somebody is being unfair or such. But tell me about this-
HIS HONOUR: Is it wrong for a judge to say 'so you actually go to trial on merits', that's no longer-
MR GUNSON SC: Mm. I don't have any problem at all -
MR GUNSON SC: I have problem with the concept that without even having heard me as counsel for the Falcones-
HIS HONOUR: I'm sorry. Where did I say I wouldn't hear you?
MR GUNSON SC: You know. But not having heard me as the counsel for the Falcones-
HIS HONOUR: 'I can do a pre-trial conference in December with you and Gunson and try and' -
MR GUNSON SC: 'Kick heads'. Why would your Honour want to kick heads when the matter might be perfectly ready to proceed?
MR GUNSON SC: I'm simply saying that your Honour by saying that to a litigant in person would encourage him to think that the counsel or solicitors for his opponent have mis-conducted themselves or would misconduct themselves in some way that was inappropriate and would require your Honour to take an adverse course towards them.
HIS HONOUR: So the use of the word plural be confined in this case, in your reading as senior counsel to be the singular?
MR GUNSON SC: I say that your Honour should not have used an expression like that to any person who is a litigant before you or they are to being fully appraise of the state of affairs first. Your Honour may well wish to reprimand, discipline, speak with, or deal with an issue, but at this stage you had no idea, with respect, as to what was being done in the course of preparation of the trial, what steps needed to be taken. You were confined to what was before you on the papers. In this long and lengthily discussion with this litigant in person. And again, at 3016, your Honour, I think for the fourth time recommends the retention of Mr Tree for this matter. Now that's all I wish to raise with respect to the transcript of the 19th of November 2001. I would like to move now to the transcript of - the 26th I think it is of - I have just missed my copy your Honour, the 26th of February, of this - yes I've just found it - 26th of February.
HIS HONOUR: Completely unrelated to this, so it's the position of the Law Society because I assume you are not doing this on instructions, that I am biased against counsel and members of the Law Society in their dealing with litigants in person."
25 The term "kicking heads", whilst not judicial, is a term not infrequently used within this discipline. It connotes robust intervention by a judicial officer who perceives obstruction, dilatoriness or unreasonable response. The use of the term "heads" in the plural denotes evenness, not bias.
26 Finally, in this section, counsel contended that a remark I made during the 24 February 2003 proceedings demonstrated that I acknowledged impermissible intervention. The passage relied upon was:
"'No, sit down please Sit down. I spent a day trying to sort, to work through step by step this matter with you. I gave you - I think I overstepped the mark as a judge in trying to help you as much as I can'."
27 The hearing on 24 February 2003 concerned a complicated application filed by the plaintiff in a different action against his former solicitor and Mr and Mrs Falcone. Counsel appeared for the former solicitor. The Falcones, who by then lived interstate, had not been served with the application. Mr Gunson was in court on other matters and Mr Mentyn raised with the Court whether it would give him leave to serve Mr Gunson, as their solicitor, instead. Before any further progress could be had on that question, Mr Mentyn sought an order that counsel, [A], be disqualified from acting as either solicitor of counsel because of his status as an officer of the Law Society and the conflict of duty and interest he had in having access to material furnished by Mr Mentyn in support of his complaint made to the Society. From then on, the course of proceedings became confused. The course of the hearing has a bearing on another basis for disqualification and will be later dealt with. The passage relied upon followed a confusing discourse which ranged from the application for the removal of counsel to the return of the money paid to Mr Pearce as all or portion of the purchase price. At some stage Mr Mentyn introduced the terms of a standard letter written by his former solicitor which included "we would undertake to settle". Mr Mentyn attempted to use the phrase to obtain an order for the return of the money paid into the Court fund. The transcript reveals the following discourse:
"MR MENTYN: It says on the third paragraph 'we would remain at all times your agent, subject to your instruction' and then on the next page is 'we would undertake to settle the matter in accordance with your instructions and would undertake not to deal with the funds in any manner save to effect settlement herein.'
Now, are you saying that the words ' undertaking' aren't undertaking?
HIS HONOUR: It's not an undertaking given to the Court. But -
MR MENTYN: Sorry your Honour. Undertakings don't have to be given to the Court.
HIS HONOUR: I said, sorry, we've gone long enough, Mr Mentyn because in the affidavit he says:
On 12 January 2000 with the consent of both the vendors and purchasers, obtained from their respective solicitors, I placed settlements funds on deposit with a trustee company, Tasmanian Trustees Ltd in an account in the name of my firm in trust for Rae and Partner and Archer Bushby, account num 228680.
The affidavit itself discloses that he has disposed of the money. Now you may well succeed in your action that he has breached his contractual duty and he's breached the terms when he used the word 'undertaking' - you may be right, that's why you have a court case to determine it. You know all this. You know all this. And he turns up and says 'that's not right, and this happened and that happened, and that happened' And you turn up, and you say 'He's dead wrong, this happened, and this happened and this happened' that's what court cases are about. Now you know that and I know that. I'm still trying to sort our the terms of what seems to be an application for a summary order which can only be made after the parties have had an opportunity to argue the case. And you'll say 'I'll have summary judgment, and by the way, we'll take his lawyer out of the ball park as well. Oh, he can stay until I finish with it and then you get rid of him.' This is not a game.
MR MENTYN: Your Honour, I object strongly to that because I have had to be subjected to the game run by Mr Pearce for three years we have been now without my money, and he made the undertakings, they're clear undertakings. If they're not undertakings recognised by the Court of Tasmania, let's take it to a court who do say that a lawyer's undertakings are sacrosanct and that they cannot be broken. I am the only one who can give permission. Rae and Partners could not give written permission without my written permission to them and they didn't have my permission to give permission to him. And it's clear -
MR MENTYN: The Halsbury's laws lay it out very clearly -
HIS HONOUR: No, sit down please. Sit down. I spent a day trying to sort, to work through step by step this matter with you. I gave you - I think I overstepped the mark as a judge in trying to help you as much as I can. We've been down all these paths. Now, I go back to why I'm here, and I'm being asked to (a) refuse Mr Jackson leave to appear for the defendant. (b) explore with Mr Gunson the question of his accepting service. I ask you then what's the next thing I'm here for and you tell me ' I'll have summary judgment that finishes this matter' and I'm saying this is not a matter for summary judgment, end of debate. Now we go to the next section. You seek the return of funds. Now that I understand, but you told me that 'I don't want those funds, I want them from Mr Pearce.' And whenever I kept telling you I thought they were in court you kept saying Mr Pearce has breached an undertaking. Now, are you seeking the return of the court funds?
MR MENTYN: Your Honour, I was very careful in my statement of claim to make no mention of that because that is where the confusion has started. Because Mr Pearce -
HIS HONOUR: Just - that's it. Just hand that document please. Read me para 2 of your application. Just Read it to me out loud.
MR MENTYN: The applicant seeks an order from the Court that all funds deposited with A.D. Pearce and Co trust account on 17th November, be immediately returned with interest.
MR MENTYN: Well as far as I'm concerned, that's - I don't know anything about where they went. I wasn't notified officially that this was my money. So my money went in and that's - we can simplify all the arguments. He made undertakings to do nothing with the money, so therefore I want him to pay it back from his trust account. And how he gets the money is his problem. It's not my money. I had to get the money into - and now you're saying a hundred thousand dollars is of no consequence that - you know - that it's just a frivolous amount of money. I mean our-
HIS HONOUR: Yes, all right. Sit down please. You see you know and I know that this money was paid by Mr Pearce to a trustee company, was paid by the trustee company which didn't know what to do with it, into a court fund. Now you know, and I know that. And you know and I know that the Court's been trying to give it back to you. And you know and I know that you've been refusing. So when I saw that document, I thought now that means that Mr Mentyn wants to get that money out of court so that he can have resources to pursue his substantive action against Mr Pearce for damages. But it turns out you don't want that, you want a final order against Mr Pearce. Is that right?
MR MENTYN: Today your Honour, all I seek is the order to return the funds because there's no question about that There is no argument about it. Why can't Mr Pearce just pay the money back? I gave it to him, the sale fell through. He's obliged to give the money back. Even under law, even if he hadn't made the undertaking he is still obliged - "
And after further interruption, the relevant exchange concluded with my statement:
"All right. That's why you're suing him. So we'll now concentrate on suing him and we'll now need to put this action in order. I can't do that until I've got the third and fourth defendants served. And I can't do that until I've decided whether Mr Jackson stays on board or not. As I keep saying, you're determined to - and when I say do you want the money back out of court you say no - make someone else do it. I am not your advocate. I do not act for you. I do the best that I can in accordance with the law, and the law according to the Trustee Act of 1898, s48 tells me what options I have when somebody turns up, and having put money, rightly or wrongly, on trust. I am not your advocate. I can do what the law permits me and I'm trying to do what you ask me, but you keep asking me contradictory things - or you keep asking me things which have the only consequence is we inevitably postpone this, and we all disappear into Alice in Wonderland again, and two years later we come out the other side. If you don't want the money out of the Court fund that's fine."
28 The words complained of were "I think I overstepped the mark". Maybe! On reflection, I think not. I was pointing out to an unrepresented litigant that some 15 months previous I had taken time to advise him of the procedures required for the return of the money. He had obtusely declined to so do. The problem had become compounded. The message conveyed by my statement was that the Court had attempted fairness to a person who believed that the entire system was engaged in a conspiracy to deny him justice. If that be bias in the eyes of the beholder, then so be it. Procedural rules necessary for the proper presentation of a cause are potent weapons in the hands of a skilled advocate and an anarchic maelstrom when misunderstood and misapplied by a person unable to dispassionately evaluate the case brought before a court.
29 There is one further piece of information required for the observer:
(9) I took no further part in the action Falcone v Mentyn subsequent to the November 2001 hearing. I did so consciously. It is difficult at this remove to identify a precise reason other than a general feeling of unease. The unease arose not because of a compromise in the action, but because of the attempt to resolve the problem caused by the payment into the Court fund. That unease in no way concerned the cause advanced by Mr Gunson's clients.
30 The action by Mr Jovanovic against the Law Society and some of its officers, which included Mr Gunson, came before me as an interlocutory proceeding on 26 February 2003. A general understanding of the action may be had by a reading of the judgment of Crawford J (Jovanovic v Law Society of Tasmania [2003] TASSC 116) delivered on 6 November 2003. Mr Williams, a partner of Mr Gunson, appeared for him and three other named persons. At the outset of the hearing, Mr Jovanovic sought an order requiring Mr Gunson, as counsel, and his firm, as solicitors, to cease appearing or representing any party in the action and other related matters. He did so in the following terms:
"I seek that Senior Counsel Mr David Gunson and the law firm Gunson Williams and any other legal practitioner from Gunson Williams and/or who has been employed by Gunson Williams in any capacity whatsoever, be barred from taking any further part in these proceedings and other proceedings based on the same and/or equivalent set of facts, more particularly matter number 727/2002 which is this matter, matter No 153/2000, matter number 12435/2001 and matter number -"
After interruption by the Court to point out that actions 727/2000 and 12435/2001 were not matters before this Court, Mr Jovanovic continued:
"As counsel, as legal practitioner or any other capacity on behalf of any defendants and/or any other person in any capacity whatsoever who might be involved, and who would be entitled to legally represented therein, other than himself, because of an unambiguous and persisting conflict of interest. I shall in the first instance set out the grounds for my application, and then I shall, as best as I can, bearing in mind that I am just a layman, set out the law, which unambiguously supports my application.
My primary basis for seeking this application is that Mr David Gunson is in conflict of interest which is prejudicial to the prosecution of my case. Furthermore if Mr Gunson is not barred from these and other proceedings, namely the criminal proceedings based on equivalent facts, his presence might occasion the course of justice to be perverted for the following reasons:
a) Mr Gunson represents and has taken instructions from Mr Ian Tapping in his capacity as the director of D W & I Tapping Pty Ltd in liquidation, of which company I was also a director and hence Mr Gunson was and/or would have been, and/or could have been, and/or will be or might be provided with confidential and privileged information in respect of the affairs of D W & I Tapping Pty Ltd in respect to Supreme Court matters number 153/2000, 12435/2001 and 92635/2001."
31 It became apparent that the latter matters were criminal prosecutions to be heard in the Criminal Court and did not directly involve the civil action. Mr Jovanovic read from a prepared document which, apart from a few minor interruptions as the Court attempted to keep up with the flow of argument, occupied some 30 pages of transcript. At the end of the submissions, I attempted to encapsulate Mr Jovanovic's contentions in a form of questions so that counsel could formulate his reply, and addressed counsel in the following terms:
"HIS HONOUR: Now Mr Williams, do you want five minutes to collect your thoughts?
MR WILLIAMS: Yes, I'd appreciate that, your Honour.
HIS HONOUR: And I'll give you my next question, which is mine.
MR WILLIAMS: Might I just sit down while I write this down, your Honour.
HIS HONOUR: By all means. I had isolated out of this debate four questions. One, Mr Gunson is named in the proceedings as a defendant in his own right. In that circumstance he may appear as a person and conduct his own case or, as he has chosen to do here, has briefed counsel to appear on his behalf. In such a circumstance is counsel who is also a party in the proceedings able consistent with his - can I put it - if I put it general obligations you know what I - it's shorthand for the whole lock, stock and barrel, ethics and rules and so on, to concurrently appear in those proceedings as counsel for the parties. Now in a way it doesn't touch on Mr Jovanovic and it's not his point but it arises, I guess, out of what I'm being asked to do. That's the first question and you may want to think about that.
Secondly, can this Court entertain an application to have him disqualified from acting for Mr Tapping in either of the Court of Petty Sessions/Criminal matters or action 153/2000 in an application made in the course of action 727/2002.
Three, is this Court entitled to consider disqualification where an opponent, that's Mr Jovanovic, in the same proceedings contends that there is a potential conflict as between some defendants being sued by the opponent. I don't think I need to hear you very much on that because it seems to me that it's Mr McMullen's call, Mr Adams' call and Nuline's call and not the opponents, but you may want to help me with that.
Four, and it may be you don't want to concede this, so let me state my position and then you - because there are two parts to the next position. Assuming that these proceedings relate to matters which have their origin in the conduct of Mr Jovanovic in and through the company D W & I M Tapping Pty Ltd and assuming that during the course of those proceedings - sorry - sorry - and assuming that before or during the course of those proceedings the company received privileged and confidential advice does the fact that Mr Gunson acts for Mr Tapping in other matters but which are related entitle Mr Jovanovic to seek his disqualification in acting against him because of the possibility or perception that he could use confidential and privileged material by virtue of his relationship with Tapping. Now that's a cumbersome and complicated way of putting that, but do you follow the point?
HIS HONOUR: So I'm not overly pressing you on the conflict of parties but I might need some help on that. Complaint and summons, Court of Petty Sessions, I don't think is that complex an area of law, I suppose that's the best way to put that. Gunson as a defendant is - you might say it's none of my business and you might be right, you might not be, I don't know. It's a matter which occurred to me -
HIS HONOUR: Because I've not had one where they're also a party. I can tell you that I - no - and then what to me has been the central one is the Tapping one. I can't help you with the defendant in person matter off the top of my head. I can tell you that I appeared as counsel in a murder trial where I was briefed by Mr Blow, it was a case of Esselberg, a man charged with attempting to murder his original wife, and there was a question arose as to whether certain events occurred during Mr Esselberg's time at the police station and Mr Blow had been present. It involved the recording of voices and so on, and there was a possibility that Mr Blow would be - could be a witness on a voire dire and he did not appear as counsel until we had passed the stage in the trial where it was obvious that he would not be required to appear as a witness on a voire dire. He did not robe until that point had passed and then he appeared fully as counsel in the trial. Now that's a bit different because it was his potential as a witness, but I suppose if you're a party then you've got the potential of having to be a witness.
HIS HONOUR: No, and the answer is I have no idea. Now that's the nearest that I can take you to a comparable problem that I've been involved in many years ago and it was different because it was a criminal prosecution, well you know all the fine print. Now I don't know what you want to do. I can tell you we're running out of time. What have I got this afternoon? I've got a lower court appeal this afternoon.
HIS HONOUR: Do you want to think about the first one? It hasn't been put on the table before.
MR WILLIAMS: No, your Honour, it hasn't and I would appreciate the opportunity to actually give it some considered thought rather than off the cuff thought."
After a short adjournment, counsel made his reply to the application and, following a brief reply by Mr Jovanovic, the decision was reserved.
32 The disinterested observer would need to have been present in court on 19 March 2003 in order to be informed of the outcome and to have read the reasons for decision.
(10) Reasons for judgment were published on 19 March 2003 (Jovanovic v Law Society of Tasmania & Ors [2003] TASSC 11) and ran to six pages. The application by Mr Jovanovic was dismissed.
33 Despite reading and re-reading all of the transcripts relevant to the bias application, I remain unsure of the basis for seeking disqualification from hearing any matter involving the action by Mr Jovanovic against the Law Society. I am aware that Mr Jovanovic has sought the disqualification of at least one judge from hearing his cause and it may be that some nuance hidden in the transcript has escaped me. Absent enlightenment, I do not regard the matter as, in any way, requiring me to stand aside.
34 The hearing on 24 February 2003 had been adjourned. On that day, Mr Mentyn's application for summary judgment had been dismissed. The two matters remaining were the application for an order prohibiting counsel from appearing and the continuing saga of the moneys paid into Court. On the resumed hearing on 27 February 2003, I handed to counsel some material provided to the Court by Mr Mentyn, but which had not been served on the other parties. From that stage, the continued hearing had nowhere to travel, except down.
35 At this hearing, counsel articulated the Society's objection to my continuous involvement, in the following terms:
"I can perhaps encapsulate now, is this; that where your Honour has made a complaint to the Law Society concerning the conduct of [A] who is a defendant in these very proceedings before your Honour, that's one further matter that we submit, when taken either alone or collectively would lead the informed person aware of the facts, etc, to conclude that there is a perception of bias."
36 The hearing on 27 February was untidy and at times unseemly. On a number of occasions I had reason to require Mr Mentyn to sit down and early on had cause to ask Mrs Mentyn:
Do you want me to direct you to leave the court, and have someone take you? You deal with this Court with the courtesy that I am attempting to deal with other people."
37 There followed a series of exchanges with Mr Mentyn which eventually culminated in the matter raised by Mr Gunson. The identified passage is an exchange between myself and counsel appearing for Mr Mentyn's opposing party. Given the nature of the exchange, it is neither necessary nor appropriate to refer to the name of counsel. It is sufficient if he is referred to as [A] and the transcript has been altered accordingly:
HIS HONOUR: No, no, no, no, no! No. No. Look, you're determined to make sure that this thing doesn't get - that it goes off the rails.
MR MENTYN: Are you implying your Honour that I have no right of any submission then. Are you saying that I have no right to appear?
HIS HONOUR: Would you just listen to me please. We will deal with this one step at a time.
... If you were unsuccessful in your disqualification application, then [A] will then have to respond to your application that Mr Pearce return the funds. You see?
That's why I got angry. You want to go and debate that. I'm trying to get back to where we're at at the moment.
MR MENTYN: Is it possible to get - because I understand that you may - because it hasn't been ventilated very often or at all in a non- administrative sense like when the Law Society did the case against Howell, my understanding is that I'm the first to raise it sort as a civil action. Is there some way that we can get a formalisation on that?
MR MENTYN: What I understand, the High Court can make decisions of this nature.
HIS HONOUR: It can, when it gets to them on appeal.
HIS HONOUR: When it gets to them on appeal. I am not going to answer your question, I am not your counsel. If you want to think about undertaking, you either do it yourself or go and seek advice on the matter. I don't give advice.
You won't be allowed to do it and you'll get a very grumpy judge."
38 It is in that context that the unedifying exchange occurred between bench and bar:
"HIS HONOUR: Now, I thought I'd attempt to deal with this without going through that time-consuming exercise. I actually thought I was going to try and do it on the run and could get it sorted by today so I could go on with what I wanted to get on with, which was your application that Mr Pearce return the money. But I can't. He's now said 'I want an affidavit' and you've said you want more argument, so you both want to do something else.
HIS HONOUR: Whereas what I wanted to do was to rule on whether he could be here and then get on with it. And I should pause and say [A], I was going to - I've got some problems with his second application, but I'm not sure as it's as simple as I certainly first saw it.
HIS HONOUR: Mm. And I was going to require you to argue this because I think there is - I shouldn't anticipate where it would go, but I was certainly going to put to you this - you need to do some argument on this because it's occurred to me that if Mr Pearce had the money and acts by sending it to a trustee company and it causes a ripple effect, it may be that it's his problem and he's got to sort it.
[A]: and I make the further point that - and I make this point and I want this clearly on the record. Mr Mentyn knows where the money is. Mr Mentyn has been informed numerous times by numerous people including judges of this Court ---
HIS HONOUR: I'm not stupid [A]. I actually understand that.
[A]: --the proper procedure available to him to get that money. Mr Mentyn is -
[A]: and I make no qualification about this. Mr Mentyn is playing -
HIS HONOUR: [A], I have completed my statement. Sit down.
[A]: Well your Honour, I have to be heard on behalf of my client ---
[A]: I hear what your Honour says about paragraph 2 of the application, but -
[A]: With the greatest of respect it's not a proper application.
HIS HONOUR: I ask that a transcript of that exchange between myself and [A] be taken and I direct that a copy of that transcript be sent to the Law Society. I was attempting [A] to do the courtesy of explaining what it was that I thought we were going to do today."
39 I make no excuse for my exchange with counsel, nor with the referral of the portion of the transcript to the Society. The hearing was replete with interruptions and confusion. It was not made easier by experienced counsel. The Court was still attempting to sort out the issues brought before it. It had not commenced an examination of the respective claims. I would be extremely reluctant to deal with counsel instanter and here the conduct would not have warranted it. It is preferable that matters such as discourtesy be referred to the professional body responsible for the conduct of practitioners. To permit counsel to disregard a request with impunity would have worsened an already untidy proceeding.
(11) The letter forwarded to the Society was in neutral terms and simply referred to the relevant portion of the transcript. The reply from the Society was to my complete satisfaction.
41 If the Society regards the exchange as evidence of bias against it, then so be it. I will not do so unless instructed to the contrary by my brethren.
42 The hearing on 27 February 2003 concluded with a civilized discussion about service of further documents.
43 The hearing in the Trustrum matter was conducted on 3 September 2003. By that time, I had already found Mr Trustrum to be in contempt of court and sentenced him to a suspended term of imprisonment. Following the judgment against him in the defamation case brought against him by the former Executive Director (Martin v Trustrum [2003] TASSC 22), Mr Trustrum commenced proceedings against, amongst others, the Society and its office bearers. Some days previous, the Society had requested further and better particulars of his claim. One of the issues raised by the application was whether the officers of the Society could be sued in person, given the protection afforded them by the Legal Profession Act 1993, s165. A question which came before me as a preliminary matter was, the validity of the address for service which was raised by counsel, and following identification of the issue, the matter generally was adjourned until 3 September for further hearing.
44 Counsel for the Society advanced as a basis for disqualification, the following:
"Now during the course of an exchange between your Honour and Mr Trustrum which is reported at page 16, or recorded at page 16, line 21, it is recorded:
'MR TRUSTRUM: Your Honour, if it assists in any way for me to explain in one sentence that - the nucleus of my action I can do it. And that is I was told by the Law Society of Tasmania that the investigations committee - this is the nub of m - and it doesn't go any further than this - I was told by the Law Society that the Investigations Committee had considered my complaint on a particular date and dismissed it as vexatious. I received a letter from the Ombudsman - the Tasmanian Ombudsman which is Judith Paxton a few weeks later at my request, confirming that the investigations committee had never seen my complaint.'
At that stage, your Honour articulated these words:
'Get her to sue the Law Society - it would be a lot easier. And therefore they did not carry out their statutory duty - that's your - that's the nub of it. Well Mr Gunson's trying to find out what the nub of the issue is you see.'
Now what you have there is an active - it may have been not intended to be serious. I doubt that it was. But nonetheless it is your Honour's reaction to Mr Trustrum telling you that and tell him to encourage somebody else to commence proceedings against the Law Society. That is, an interpretation that is open."
"The passage to which I propose to refer are to be found at para - page 8 of the transcript, line 31. Where your Honour said this:
I'd given you a brief response to some questions your Honour had raised with me which are set out on the previous page and you said:
'I will tell you what my problem is. My problem is that I don't - am not minded to accommodate a methodology or a strategy which uses procedural rules against an unrepresented person by using things, particulars and discovery in terms which are so wide and which take advantage of the rule to have a person's claim dismissed without the thing going anywhere near its merits'.
MR GUNSON SC: And I simply pause to make the observation that this was an application for particulars, discovery was not an issue and that I - and I said:
'And I regard that as very close to abuse of process'.
MR GUNSON SC: 'And if I regarded that as a conscious strategy designed either to frustrate a claim by reason of costs orders or by reason of impossibility of answer, I might go another path'.
MR GUNSON SC: And I said at the bottom of the page:
'I'm not - please don't misunderstand me. I am talking in theoretical - you've given me a theoretical construct and I can give you a theoretical construct'."
"MR GUNSON SC: All right. Page 12, at the bottom of the page, I said, line 37:
'Well, I am trying to just do the right thing. Your Honour seems to think I am doing the wrong thing
Well your Honour thinks that without having heard me as to the rights of the defendants to request information pertaining to the quality of the statement of claim.'
'Oh, you needn't trouble yourself with that. I think it is an atrocious endorsement of writ, if you want my opinion.'
HIS HONOUR: I shouldn't have said that either, should I?
MR GUNSON SC: But it is not a test at the end of the day of saying it is six all or five all or four three and therefore bias can't fall because you have made one comment about one party and not the other. But we continued on:
'But nonetheless, we must do what we can do. I mean, the whole of the action -'
'I have just finished dealing with a complex and contempt of court case which arises out of exactly the same type of sequence of events. I am not going to go down that path again. I will not to get to a stage of hanging orders and default orders unless and until I am satisfied that we have taken all the other steps.'
HIS HONOUR: And is there anything wrong with that statement?
MR GUNSON SC: No, not at all. But the inference that arises from it is that in some way before we'd even got to the point where particulars were to be ordered or even had heard an argument as to whether particulars should be ordered, your Honour is announcing that you are not going down a certain path and by inference suggesting that in some way the defendant by having made an application was in some way acting -
HIS HONOUR: Where have I gone down that path? Go back to 8. You tell me - tell me what is wrong with lines 30 to 45 please?
MR GUNSON SC: I will tell you what is wrong, your Honour.
MR GUNSON SC: They should not have been uttered on that occasion because the only inference that can be drawn and- ".
45 Again, it is necessary to consider the context of those selected extracts. Before that analysis it is necessary to inform the observer:
(12) The problems caused through unrepresented litigants are common to all jurisdictions and are made more difficult by persons who perceive that the entire legal system is engaged in a process to obstruct the justice of their cause and in some cases to destroy them as individuals. The general problem will be later stated but it will not readily go away. Mr Trustrum has, over a long period of time, waged an unremitting and vicious attack on both institutions and individuals involved in the law. Nevertheless, our society quite properly requires that he be heard and dealt with fairly in accordance with law.
(13) During the course of the hearing of 3 September, there was discussion between myself and Mr Trustrum concerning the futility of pursuing his claims against officers of the Society as individuals if they were indeed protected by the Legal Profession Act, s165. The observer would need to read the transcripts of proceedings of 3 September, pages 21 - 32, to follow the outcome. An extract of that discourse is sufficient to illustrate the course of what might have proved to be an acceptable resolution:
"HIS HONOUR: All right. And Mr Gunson was simply pointing out to you, and they've got statutory protection, for doing their duty. But in any event - all right, now Mr Gunson, I'll hear what ever you're about to tell me. I was trying to work out whether I could discern a middle course, but unless I've mis-read him, and unless I've mid-read the Law Society there is no middle course that I can -
MR GUNSON SC: No, I was merely going to say your Honour that if Mr Trustrum wanted to discontinue these proceedings I'm sure that the Society wouldn't seek any costs against him.
MR GUNSON SC: And I'm confident enough to say they would be my instructions."
"MR TRUSTRUM: Well, I've got plenty on my plate at this stage. I think it's rather a - I'm certainly not saying I wouldn't agree to that, but it's rather a big decision to make on the spot.
HIS HONOUR: I'm not going to ask you to make it on the spot. And I don't want to turn this into where you're travelling to Hobart every second week, either but I discern from you and you're not being held to this - I discern from you that on this particular action - don't worry about other - but on 85/2003 it is possible that on reflection you might think it's run its course and you might -
MR TRUSTRUM: Mm I think that I could certainly say that your Honour. Mm.
MR TRUSTRUM: If I had further time to think about it."
That the matter was not resolved does not vitiate the process.
46 The above information supplied to the observer hardly evidences bias against the Society. The outcome might have resulted in discontinuance. Given the impecunious state of Mr Trustrum, the possible concession as to costs would not have been unduly disadvantageous to the interests of the members of the Society.
47 Putting aside the possibility that the earlier exchanges might have produced a desirable outcome, it remains necessary to place the impugned statements into a more narrow context and to consider their import.
(1) Early in the hearing I had canvassed with Mr Gunson the option of ordering a stay of proceedings if adequate particulars were not provided. Counsel pointed out that since some of the defendants were practising solicitors, they would be prejudiced by reason of having to disclose unresolved pending claims against them which might adversely affect their insurance premiums. That point made, it was obvious that the scope of the particulars, no doubt a response to the unskilled pleadings of the plaintiff, would require detailed examination. Examples of the particulars will suffice to illustrate the point:
"3 Under paragraph 7 of the Statement of Claim state the breach of trust that is alleged on the part of Mr Pearce and the manner in which it is alleged that the breach occurred.
9 Under paragraph 10 of the Statement of Claim identify the Tasmanian legislation referred to therein.
10 Under paragraph 11 of the Statement of Claim state the basis upon which it is alleged that Mr Pearce had a duty to inform the Plaintiff that a substantive vendor/purchaser conflict of interest was likely to arise and state the basis upon which it is alleged that there was likely to be such a conflict of interest.
11 Under paragraph 12 of the Statement of Claim state the basis upon which it is alleged that Mr Pearce had a duty to inform the Plaintiff as a bona fide purchaser that the buildings were not lawfully constructed as required by the Local Government Act 1962 and state the basis upon which it is alleged that the buildings were not lawfully constructed in accordance with that Act.
15 Under paragraph 22 of the Statement of Claim provide all particulars of the allegation that
16 Under paragraph 23 of the Statement of Claim identify the discretion that it is alleged The Law Society of Tasmania and the Investigations Committee failed to exercise and identify the manner in which it is alleged that The Law Society of Tasmania and its Investigation Committee had been asked to exercise such a discretion.
18 Under paragraph 25 of the Statement of Claim state all particulars relied upon in support of the allegation that The Law Society of Tasmania and its Investigation Committee failed to exercise their statutory powers in good faith and identify the statutory powers referred to therein.
20 Under paragraph 27 of the Statement of Claim state all facts and circumstances relied upon in support of the allegation that The Law Society of Tasmania and Investigation Committee denied the complainant the protection accorded by the audi alterant (sic) partem rule.
21 Under paragraph 28 of the Statement of Claim state all the facts and circumstances relied upon in support of the allegation that The Law Society of Tasmania and its Investigation Committee failed to recognise their obligations as quasi judicial officers and state the basis upon which it is alleged that The Law Society of Tasmania and its Investigation Committee were quasi judicial officers.
23 Under paragraph 30 of the Statement of Claim state all the facts and circumstances relied upon in support of the allegation that The Law Society of Tasmania and its Investigation Committee failed to meet certain minimum procedural standards that a reasonable member of the public might have come to expect to be maintained and state what those certain minimum procedural standards are alleged to be which it is alleged were breached.
27 Under paragraph 40 of the Statement of Claim identify the undertaking that was given to the Court to exercise discretion and state when it is alleged that such undertaking was given and by whom they [sic] were given.
30 Under paragraph 43 of the Statement of Claim identify the undertaking that was given to the Court to exercise discretion and state when it is alleged that such undertaking was given and by whom they [sic] were given.
34 Under paragraph 46(a) of the Statement of Claim state all of the facts and circumstances relied upon in support of the allegation that the Defendants have caused the Plaintiff to suffer loss of future income.
(a) identify the mental distress allegedly suffered by the Plaintiff and state when same first arose;
(b) identify the mental distress allegedly suffered by the Plaintiff's wife and state when same first arose;
(c) identify the ill health allegedly suffered by the Plaintiff and state when same first arose;
(d) identify the ill health allegedly suffered by the Plaintiff's wife and state when same first arose.
38 Under paragraph 46(e) of the State of Claim state the basis upon which it is alleged that there may be a potential loss of the Plaintiff's accumulated research and knowledge gained in New Zealand for which the Plaintiff would be entitled to damages and identify the accumulative research and knowledge which is referred to in this paragraph.
43 Under paragraph 46(h) of the Statement of Claim state the basis upon which it is claimed that the Plaintiff is entitled to all costs related to defending the civil action currently 282 or 2002."
The request was complex and voluminous. Given that the Law Society's application included one seeking default judgment in the event of non-compliance, the actual orders to be made would have been difficult to identify and formulate.
The extract chosen by counsel does not include the following response:
"MR GUNSON SC: You can indeed your Honour, but it would be erroneous for you to assume that to be the case merely on the basis of documentation, because what your Honour is basically suggesting is that there is mala fides on the part of the defendants in making a proper request."
"HIS HONOUR: No, no Mr Gunson, I understand that, and I will now shorten this. I was trying to do you a good turn. I will no longer cease to do that. My determination at the moment is that Mr Trustrum has an address for service in accordance with the rules and your address is 28 Doyle Avenue Lenah Valley."
(2) Then, following discussion about a claim by Mr Trustrum as to non-service of an order of the Court requiring the supply of particulars, came the observation about the state of the plaintiff's pleadings, which was shortly followed by a statement to counsel:
"HIS HONOUR: I have just finished dealing with a complex contempt of court case which arises out of exactly the same type of sequence of events. I am not going to go down that path again. I will not get to a stage of hanging orders and default orders unless and until I'm satisfied that we've taken all other steps, and one of the problems that I have is with the rules and their use. That's all. But I'll hear you - and at any rate, we're still - it's still a preliminary skirmish. I'll hear you, in full - don't worry about that- you'll get your chance. At the moment I'm trying to work out the parameters. I'm trying to work out a time frame. When I do that and before I do anything final you will have unlimited time to address me."
I then directed my criticism towards the plaintiff about his complaints and the state of his pleadings.
(3) The statement interpreted by counsel to mean an incitement to sue was made in the course of this exchange with Mr Trustrum:
"MR TRUSTRUM: your Honour, if it assists in any way for me to explain in one sentence that - the nucleus of my action I can do it. And that is that I was told by the Law Society of Tasmania that the investigations committee - this is the nub of my - and it doesn't go any further than this - I was told by the Law Society that the Investigations Committee had considered my complaint on a particular date and had dismissed it as vexatious. I then received a letter from the Ombudsman - Tasmanian Ombudsman which is Judith Paxton a few weeks later at my request, confirming that the investigations committee had never seen my complaint.
HIS HONOUR: Get her to sue to the Law Society - it would be a lot easier. And therefore they did not carry out their statutory duty - that's your - that's the nub of it. Well Mr Gunson's trying to find out what the nub issue is you see.
MR GUNSON SC: I'm sorry, I didn't quite catch that your Honour.
HIS HONOUR: And all that Mr Gunson's trying to do is to find out what is the nub of your case against them.
HIS HONOUR: That's not doing you a disservice, is it? That's what you're trying to do.
It was exasperation, not an incitement to commence proceedings. If Mr Trustrum's complaint was that the Society had failed to fulfil its statutory duty and the Ombudsman had become involved in his complaint, then it was for her to initiate proceedings, rather than Mr Trustrum to seek to involve this Court in a matter which was the responsibility of an administrative officer of the State. If counsel did not understand the purport of the statement, then it is a matter of regret. It was not a manifestation of bias against the Society. The hearing then proceeded to the attempted resolution of the matter earlier referred to.
48 Counsel submitted that even if, taken individually, each impugned statement or exchange did not afford a basis for concluding bias, their cumulative effect demonstrates a presumption of bias in that I was prepared to support an unrepresented litigant at the expense of a party entitled to impartial treatment. I reject the contention. In order to write these reasons for judgment, I have read and re-read 397 pages of transcript, not including the documents used in the various proceedings. Three transcripts cover eight hearings involving a variety of parties. The November 2001 extracts chosen by counsel required examination of their context and omit criticisms expressed by me towards the unrepresented litigants. That the language used was at times "common place" or vernacular was because the litigants were unrepresented and genuinely did not understand the language of Parliamentary draftsmen, the terminology of lawyers, or their nuances of meaning. That the language was sometimes robust is a reflection of the need of a Court to control its own proceedings and of the effect that the conflict which parties bring to the courts for resolution is often real, intense, personal and of great subjective consequence. That is the nature of the discipline that is "the law". The subtlety and finesse of a court of equity is not always apposite in a court of common law. The term "re-join planet earth" could better be expressed as "pardon me but I would be grateful if we could return to the matter at hand", but in some instances it is more effective and contains much more information. (See Aust Bar Review, Vol 23, No 3 at 215.)
49 The principles governing the obligation of a judicial officer, whether such claimed bias be actual or apprehended, have been variously considered and stated in cases such as Livesey v New South Wales Bar Association (supra) 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; (2000) 201 CLR 488; Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337. They require no restatement here. The test apposite in this case is as stated by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson comprised in the head-note, namely:
"The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide."
50 Experience suggests that in the case of a self-represented litigant, the less said by the presiding judicial officer, the better (Litigants in Person, Wilcox J, National Judicial College of Australia, Hobart, 5 March 2004). However, pragmatism does not necessarily resolve the tensions and complications which often arise during the course of pre-trial management. The Rules of Court provide for a regime for the orderly progression of case-management which, in turn, creates a tension where one of the parties is self-represented (see generally The Managerial or Interventionist Judge (1993) 3 Journal of Judicial Administration, Rogers J at 96). Modern practice and complexity require intervention. As the House of Lords stated in Ashmore v Corp of Lloyds [1992] 2 All ER 486 per Lord Templeman at 493:
"Mr Lyndon-Stanford repeated the arguments in the Court of Appeal and as Ralph Gibson LJ remarked:
'He claimed in particular that it was wrong thus to take the conduct of the proceedings out of the hands of the plaintiffs and thereby to disappoint the plaintiffs in their legitimate expectation that the trial would proceed to a conclusion upon the evidence to be adduced.'
Ralph Gibson LJ thought that there was 'considerable force in those submissions'. My Lords, I disagree; the control of the proceedings rests with the judge and not with the plaintiffs. An expectation that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff is to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings."
"In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues."
51 There is no right, vested in a party involved in a court's procedure (Cherville DC v Thames Water Board [1975] 1 WLR 448). The Court, especially in procedural or pre-trial management, is not a "rubber stamp" to the wishes of the parties. Although a court will ordinarily give effect to consent orders tendered by the parties who are sui generis and who are affecting only their respective rights, it retains an obligation to ensure compliance with statute, jurisdiction and the public interest (Sydney City Council v Ke-Su Investments [1985] 1 NSWLR 246; see generally Some Proposed Changes in Civil Procedure, (1993) 2 Journal of judicial Administration, Davies J, 111).
52 Here, one of the impugned interventions concerned the disposal of moneys paid into the Court fund which required intervention to resolve the rights and obligations of others, including the original solicitor, the trustee company, and the court itself. The Falcones had no right or direct interest in the money paid into court. At best they had an inchoate right to attach portion of it as a consequence of an unsatisfied costs order.
53 In interlocutory proceedings where the consequence is peremptory termination, special attention is required of the court. In such a case the court should:
"approach the peremptory termination of litigation prepared by an unrepresented person, unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim, with special care to ensure that there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form." (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534.)
54 Whilst excessive intervention might constitute departure from the rules of procedural fairness and constitute an error of law (Burwood Municipal Council v Harvey (1995) 86 LGERA 389; Escobar v Spindaleri (1986) 7 NSWLR 51), case-management, especially where one party, reasonable or unreasonable, is unrepresented, requires intervention to ensure that the issues requiring resolution by trial are clearly identified and that, where possible, they be determined on their merits. That is the primary purpose of rules of procedure and case-management. The balance is more easily achieved during the trial process, where substantive rights are determined, than at the preparatory stage.
55 For many reasons, the number of unrepresented litigants has increased dramatically in the past decade. (See generally Australian Experience with Self Represented Litigants, Nicholson J (2003) 77 ALJ 820.) A useful overview of the increase and its impact has been provided by the Law Council of Australia in its research for, and publication of, Erosion of Legal Representation in the Australian Justice System, February 2004. In the Annual Report of the High Court 2001 - 2002 it was recorded:
-- the number of self-represented litigants for special leave to appeal increased from 162 (33 per cent of applications) in 2000 - 2001 to 197 (40 per cent);
-- the percentage of single justice hearings involving self-represented litigants increased from 19 per cent to 31 per cent in the same period;
-- more than 50 per cent of the time of Registry staff is taken up with self-represented litigants.
Statistics compiled by the Federal Court show a corresponding increase from 19.5 per cent in 1997 to 40.8 per cent in 2002 - 2003, whilst the published figures of the Family Court estimated the current percentage of unrepresented litigants to be 37 per cent. In Tasmania, Registry officers calculate that there were some 77 files involving civil litigants in person in the year 2003. Anecdotal evidence suggests the increase has been experienced in all State jurisdictions. The increase appears, at least in this jurisdiction, to be less in the Criminal Court. The reasons for the increase are complex and are not within the province of this judgment. It is appropriate, however, to consider some of the problems created by greater recourse to the Courts by unrepresented citizens and the types of problems evidenced by the proceedings which gave rise to this application for disqualification. I do so because those problems will not disappear. Whatever the Courts or the legal profession might think of the problem, the Courts remain an instrumentality of the State, whose duty is to enforce the law in its criminal jurisdiction, protect the individual in its administrative and probate divisions, and resolve or determine disputes between citizens and citizens or citizens and institutions in its common law or equity jurisdictions. Access to the State institution cannot be denied. The requirement to afford justice is to afford equality before the law. Those statements are easily made, and strongly defended. Their implementation is more difficult. But, as with all structures, there are "fault lines" and tensions between the ideal and practice. The self-represented litigant increases the tension and often patrols along the fault lines. A litigant with resources and represented by one skilled in the workings of the law, has advantage over the other thus increasing the tension between theory and practice. An obsessed litigant with intelligence, but not resource, inhabits the fractures or "fault lines". This is said, not as a sociological exercise, but as a suggestion that the problem will not go away. (See A Study of Unusually Persistent Complainants, Grant Lester FRANZCP, Beth Wilson LLB, Lynn Griffin M Ed, Paul Mullen D Sc, paper presented at National Judicial Conference Seminar, Hobart, 5 March 2004.)
56 Most self-represented litigants do the best they can. They seek redress and present their cause with simplicity and dignity. They have difficulty in the form and procedure necessary for fair and appropriate disposition. But not all litigants possess the insight or capacity for identification of their cause beyond their general sense of grievance. This is especially so when the grievance held involves an instrumentality of the State or a large institution.
57 There is conflict between the fundamental right to appear and the requirements of a court to administer justice, and conduct cases efficiently and expeditiously (Lawyers' Duties to the Court, Ipp J (1998) 114 LQR 63). Whilst self-represented litigants are entitled to appear "... they are independent of, and not governed by the duties owed to a court by a legal practitioner upon which the operation of the court system is so highly dependent" (Australian experience with self-represented litigants, Nicholson J (2003) 77 ALJ 820 at 821).
58 The Family Court has, by reason of the nature of its jurisdiction, been required at an early stage to consider the issue judicially (In Marriage of Johnson (1997) 139 FLR 384, In Marriage of F [2001] FamCA 348; (2001) 161 FLR 189). In the latter case, the court, at 226 - 227 identified the obligations of Family Court trial judges when hearing cases involving self-represented litigants in the following terms:
"1 A Judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
2 A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witness.
3 A judge should explain to the litigant in person any procedures relevant to the litigation.
4 A judge generally [sic] assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
5 If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
6 A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
7 If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
8 A judge should attempt to clarify the substance of the submissions of litigant in person [sic], especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150).
9 Where the interests of justice and the circumstances of the case require it, a judge may:
-- draw attention to the law applied by the Court in determining issues before it;
-- identify applications or submissions which ought to be put to the Court;
-- suggest procedural steps that may be taken by a party;
-- clarify the particulars of the orders sought by a litigant in person or the bases for such orders."
59 In the area of criminal law, the High Court in MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, stated:
"There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial." (Gibbs CJ and Wilson J at 524. See Pirimona v R (supra).)
There is a useful summation of the problems associated with unrepresented litigants in this jurisdiction by Mildren J in Don't Give Me Any LIP - The Problem of the Unrepresented Litigant in Criminal Trials (1999) 19 Aust Bar Review 30. In many respects, the procedures required in the criminal jurisdictions and the duty of the prosecution to supply its material in advance make it easier for a court to accommodate the problems than in its exercise of civil jurisdiction.
60 Amelioration of the problem ought not rest with Registry or Court staff. They already bear the brunt of aggression, abuse and dissatisfaction in their failure to afford legal advice (Nicholson J (supra) at 825; A Study of Unusually Persistent Complainants (supra); Courts and the Public (AIJA, 1998) 107). At present in this jurisdiction the complexities raised by procedural steps can only be resolved by a judicial officer sitting in Chambers. The complaints made by Mr Gunson and the Society relate to problems which could not be dealt with elsewhere.
61 In 2001, the AIJA published a research paper entitled Litigants in Person Management Plans: Issues for Courts and Tribunals, in which court administration was referred to: (http://www.aija.org.au/onlinepub.htm.) The report suggested a methodology, portion of which has been implement by the Federal Court (Nicholson J at 825). However, the size of and resources available to this Court do not permit the establishment of an infrastructure sufficient to deal with many of the issues. Such assistance as can be reasonably provided remains the task of Registry staff.
62 In some cases, any assistance proffered or advice given to advance the cause of a litigant in person will be unwelcome and unsuccessful, A Study of Unusually Persistent Complainants (supra). Nevertheless some minor solutions can be provided within a small jurisdiction.
63 The Legal Aid Commission provides an equivalence of a "duty solicitor" who attends the Court and provides limited assistance in procedural matters. Government should comprehend that such a service provides for a cost savings benefit to the State exchequer in court time and effectiveness.
64 Protocols can be developed whereby potentially complex procedural problems are identified and allocated to a judicial officer well in advance. Applications with a short return date ought be deferred, absent exceptional circumstances, so that a multitude of issues can be dealt with at the same time.
65 Papers relevant to the application ought be separated, in advance, from the file before the hearing of an interlocutory application.
66 In a recent case, Underwood J exempted an action from the requirements of the pre-trial or case-management provisions of the Supreme Court Rules. That step has been advantageous and not prejudicial to the interests of either party.
67 Litigants in person should be encouraged to prepare, in advance of a hearing, a written statement which they can either read to, or provide, to the Court. They ought be confined to the terms of that prepared document.
68 Legal practitioners ought be conscious of the need to draft applications and interlocutory orders sought in terms which are understandable to persons not trained in the language of the law and refined to define the precise issue to be determined. Orders sought ought be provided to the opposing party in advance. The more prolix and voluminous the procedural orders sought, the greater will be the expense, difficulty and time experienced by the Court.
69 Where the litigant in person is the claimant, then provided the claim is sufficiently identified, strict compliance with a "certificate of readiness" may not be required, provided that the claimant is made aware that additional material or issues may not be tendered or advanced during the trial stage of the proceedings.
Law Society, the profession and the self-represented litigant
70 The reasons for decision have been necessarily lengthy to deal with the matters advanced by counsel in support of the application for disqualification. They have been made more so by the extension of the application by the Law Society for disqualification from dealing with any action for damages against it or at least those actions brought by Messrs Mentyn, Trustrum and Jovanovic. Each of those actions was brought on the claim that the investigatory or disciplinary public duties of the Society had not properly been discharged. In that regard, the Society was both representing the profession and the public at large. The position as advanced by the Society, through experienced counsel who was also a party to some of the proceedings, shows little appreciation of the problems associated with unrepresented litigants and, in particular, their effect on the Court through both its judicial and public officers. Two examples ought suffice. In the Trustrum matter, the request for particulars (some of which have been stated) sought by the Society were not susceptible to easy answer by any party, represented or unrepresented. Their formulation displayed an indifference to the problem at large and required either intervention, later complained of by the Society, or the making of a "default" order. Some would have obfuscated rather than identified the relevant issues. To say that they were but a response to defective pleadings (a matter commented on by the Court and then impugned) again shows a lack of appreciation of the general problem. The second concerns the impugned exchange with counsel. The exchange was pre-emptory and brusque. But confusion and mayhem from one side ought not be made more incendiary by experienced counsel. An accelerant was not necessary to maintain "the heat of battle". Even during the hearing of this application, the problem was manifest. Counsel for the Law Society made his application without notice to the Court or to Mr Mentyn. He relied on transcript material which was not in the possession of his opponent, nor about which he had afforded notice. There was a dispute between counsel and Mr Mentyn about whether the authorities relied upon had been notified. Had the positions been reversed, counsel would doubtless have expressed disquiet. Time and expense to the Society and the public purse has been disproportionate to the question raised.
71 The profession itself has a responsibility to understand and accept the difficulties associated with self-represented litigants. Amelioration of the problems ought not be confined to the Courts. The issue raises procedural and ethical questions for legal practitioners (Litigants in Person, Byrne and Leggat (1999) 19 Aust Bar Review 41; Australian experience with self-represented litigants (supra)). The New South Wales Bar Association has addressed the issue through its development and publication of Guidelines for Barristers, July 2001, which set out the impact of the self-represented litigant on the client, counsel, courts and the public at large. Included in those guidelines are ones which have bearing on these proceedings, namely:
"19 Generally cases involving self-represented litigants are more difficult and require more inter-personal skills of patience and adaptability on the part of the barrister. Barristers need to retain their objectivity and commitment to their various duties and obligations notwithstanding the frustration experienced, for example, when the motives of a self-represented litigant may be seen to be other than the pursuit of justice. This can occur, for example, in a migration case where the objective of the self-represented party may be to purely delay the proceedings to delay and/or frustrate a final decision.
20 Similarly, where a self-represented litigant is obsessed by the litigation and is unable to exercise rational judgment in relation to the dispute, great care needs to be taken not to become embroiled in apparently personal attacks or criticisms which may emanate. In such circumstances, it is suggested that any refutations of comments made occurs in as professional and non-personalised way as is possible.
36 Research shows that, in cases involving self-represented litigants, a great deal of time of the courts (and often that of the opposing party) is taken up at preliminary /interlocutory stages when the self-represented litigant's lack of legal knowledge and, on occasions, lack of judgment about the case and the evidence become apparent.
37 It is suggested that to avoid future problems in the litigation pathway, the barrister ensure the self-represented litigant is sent a copy of the orders which have been made. Depending on whether there has been a history of difficulties either experienced or caused by the self-represented litigant - for example, of non-compliance with existing orders - it may also be advisable to ensure that the orders be accompanied by a letter setting out what action, orders etc, will be sought on the next occasion that the matter is before the court.
39 Where the barrister comes to the view that the entire action by a self-represented litigant is misconceived or, for example, that there is no evidence to support the action being maintained by the self-represented litigant, a barrister may be asked to advise on whether a strike-out application should be brought. The barrister should be aware that the reluctance on the part of some judges to entertain such actions is often increased when the opposite party is a self-represented litigant. Depending on the circumstances, it may be better in such cases to seek that the hearing be expedited.
40 The barrister should be aware that some judges may suggest an amendment to a pleading necessary to establish a cause of action - for example, on a strike out/ summary dismissal application - see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536; Morton v Vouris (1996) 21 ACSR 497 at 513-4. The latter case also contains (at p 520) a practical outline of the difficulties barristers may experience when faced with a self-represented litigant who is prepared to make extravagant allegations without deigning to provide particulars (including allegations of misconduct on behalf of judicial officers). He is effectively immune from the constraints imposed by a potential or actual costs order. On his own evidence, he has no means to satisfy a costs order. In that case the trial judge, Sackville J, made orders granting the plaintiff leave to apply to amend a statement of claim, provided the application for leave was accompanied by affidavits in appropriate form showing there were facts which could probably be proved and which, if proved, would support the general statements made in the statement of claim.
62 Various appellate courts have set out the duties of judges and tribunal members at first instance in dealing with and giving assistance to self-represented litigants. One of the factors which will determine the extent of these duties is the existence of any particular evidentiary requirements binding on the court or tribunal - for example, if a tribunal or commission is bound by the rules of evidence or in the words of a formula often used, the court or tribunal can 'inform itself of any matter in such manner as it considers just.' - see s110(2) of the Workplace Relations Act 1996 (Cth).
63 The Full Bench of the Australian Industrial Relations Commission set out guidelines for members as to the assistance which could be provided by members of the Commission in Davidson and Aboriginal and Islander Child Care Agency (Unreported, AIRC, 12 May 1998) 534/98 as follows (at p 9): The assistance provided by a member may, depending on the circumstances, include:
(i) identifying the issues which are central to the determination of the particular proceedings;
(ii) drawing a party's attention to the relevant legislative provisions and key decisions on the issues being determined;
(iii) asking a party questions designed to elicit information in relation to the issues which are central to the determination of the particular proceedings;
(iv) assisting a party to conform to the Brown v Dunn principle and other procedural rules designed to avoid unfairness; and
(v) drawing a party's attention to the relative weight to be given to bar table statements as opposed to sworn evidence. A member may also intervene, to an appropriate extent, by asking questions of witnesses. Such a role is appropriate in the following circumstances:
(vi) to clear up a point that has been overlooked or left obscure;
(vii) to obtain additional evidence to better equip the member to choose between the witnesses' versions of critical matters;
(viii) to exclude irrelevancies and discourage repetition;
(ix) to ask admissible questions which a party is unable, for the moment, to formulate; and
(x) to facilitate expedition in the progress of the proceedings.
65 The duties of trial judges in Family Court proceedings involving a self-represented litigant were set out by the Full Court in Johnson v Johnson (1997) FLC 92-764; (1997) 22 Fam LR 141. A barrister needs to be familiar with those obligations as it is clear that, unless they are complied with, a judgment emanating from a hearing carried out contrary to those guidelines is liable to be set aside on appeal.
70 The judge's obligation is to ensure that he or she does not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation - see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129.
71 The judge should not give legal advice to a self-represented litigant. This is because such an approach may not only give the appearance of unfairness to other parties but also it may be given without full knowledge of the facts - see Johnson v Johnson (op cit.)
72 There is a distinction between explaining procedural choices available and advising what decisions to make. For example, a judge may explain the form of questions to be asked but should not put the questions into that form - see McPherson v R [1981] HCA 46; (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168
73 Excessive intervention by the trial judge may breach the judge's duty to observe procedural fairness to both parties, so constituting an error of law - see Burwood Municipal Council v Harvey (1995) 86 LGERA 389 per Kirby P. But what a judge must do to assist a self-represented litigant depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case - Abram v Bank of New Zealand [1996] FCA 1650; [1996] ATPR 41-507.
74 Failure to object to excessive intervention may constitute a waiver or may estop a subsequent complaint. The objection should be taken at the earliest opportunity. See Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572, 577; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288.
75 Making a disqualification application can be one of the most difficult and stressful tasks for a barrister. The difficulty can be exacerbated in a case where a self-represented litigant is involved, as the judge may feel compromised (even to the extent of 'walking a tightrope') by the need to help self-represented litigants and at the same time remain, and appear to remain, impartial - see Research Paper pp 45-49. It is suggested that this is one area where, if time permits, a barrister might outline the scenario in which he or she is involved to a senior colleague before making such a submission."
72 A response, limited to the use of blunt instruments, will not facilitate resolution.
73 The application that I disqualify myself from the further hearing of this matter is dismissed. The extended application that I disqualify myself from further involvement in the Trustrum or Jovanovic matters or other actions for damages against the Law Society of Tasmania is likewise rejected.
74 Here I will depart from my usual attempted (successful or otherwise) method of writing reasons for judgment in the third person and interpose my own response. During the course of these proceedings, I perceived the concern of the Society to be that in some way I sought to stay engaged in these proceedings as a commitment to ensuring the "rights of the underdog" or as a champion of the oppressed. In many bias cases there is a perception that the judicial officer obtains satisfaction from remaining "engaged" in the proceedings. For my part, nothing could be further from reality. It would have been far easier and personally rewarding to have granted the disqualification application ex tempore.
75 The application for particulars will be returned to me for determination.
# Mentyn
Law Society \[2004\] TASSC 24
(1983) 151 CLR 288
(2000) 201 CLR 488
(1998) 7 Tas R 407
(1994) 121 ALR 148
(1994) 68 ALJR 509
(1977) 136 CLR 248
(1981) 55 ALJR 12
(1986) 161 CLR 342
(1989) 167 CLR 568
(1994) 181 CLR 41
(2000) 205 CLR 337
(1986) 6 NSWLR 534
(1995) 86 LGERA 389
(1986) 7 NSWLR 51
(1997) 139 FLR 384
(2001) 161 FLR 189
(1981) 147 CLR 512
(1997) 22 Fam LR 141
(1999) 166 ALR 129