Mentyn v Westpac Banking Corporation

REASONS FOR JUDGMENT 1 On 21 November 2003 the applicant, Mr Jean-Paul Mentyn, commenced the present proceeding against Westpac Banking Corporation, Tasmanian Perpetual Trustees Limited, the Supreme Court of Tasmania, the State of Tasmania, six firms of solicitors, the Law Society of Tasmania and Geoffrey James Falcone and Vivian May Falcone. 2 The proceeding arises out of the purchase by the applicant of a property at St Marys in August 1999. Mr and Mrs Falcone were the vendors. Mr Mentyn did not complete the purchase and the vendors commenced proceedings in the Supreme Court of Tasmania on 21 August 2000. Initially they sought specific performance but subsequently they accepted the applicant's repudiation and claimed damages. 3 There are a number of notices of motion before the Court this morning including one filed by the applicant on 9 December 2003. It claimed various relief including orders for punishment for contempt of various of the respondents, an order that the Federal Court "exercise inherent and/or accrued jurisdiction over all of these associated State court matters and relevant Law Society complaints" and awards of exemplary and punitive damages. Disqualification application - apprehended bias 4 The matter raised by the notice which requires immediate attention is a claim that I should disqualify myself by reason of apprehended bias. This application is founded largely on an order I made on 11 June 2002 cross-vesting to the Supreme Court of Tasmania an earlier proceeding relating to the St Marys property (T37 of 2001). I made that order because, as already mentioned, there was already in existence an action in the Supreme Court concerning the property. The fact that the proceeding T37 of 2001 concerned the sale of real property in Tasmania seemed to be an added reason for having the matter dealt with in the Supreme Court. 5 It is plain enough that my decision to make the order did not rest on any question of the character or integrity of the applicant; rather it was a matter of self-evident convenience. I therefore do not think that any fair-minded observer would think that I might not bring an unprejudiced mind to any further hearing of the present matter because of the order I made. The applicant complained that I did not ask for evidence and accepted statements made by Mr Gunson SC, who then appeared for the vendors. However, as I say, the desirability of making such an order seemed obvious. 6 The applicant has also relied on a matter which has arisen recently. The Director of Public Prosecutions for Tasmania, who acts for the State of Tasmania and, insofar as it is capable of being sued, the Supreme Court, sought leave to issue a subpoena returnable today addressed to the Practice Manager of the Derwent Valley Medical Centre to produce the applicant's medical records. I take the view that litigants are entitled to have evidence produced before a Court pursuant to subpoena; the question of what use is made of that material is then a matter for the judge hearing the matter. Accordingly I gave leave. The material has been produced pursuant to subpoena. I have not looked at it. The use that is to be made of it will depend on further submissions by the party that sought the issue of the subpoena. 7 The only other matter I think I should mention at this stage in relation to the application that I should disqualify myself for apprehended bias is that the applicant said he did not appeal against my order of June last year because he was in shock. He told the Court today that he had suffered from bi-polar disorder although he says he is now better. 8 I should note that the proceeding in the Supreme Court was heard by Blow J over a period of seven days. His Honour gave judgment on 29 August 2003 upholding the vendors' claim for damages: Falcone v Mentyn [2003] TASSC 79. So the applicant's notice of motion dated 9 December 2003, insofar as it seeks a stay on the ground of my apprehended bias, is dismissed. The other relief will stand over pending consideration of the further notices. Motion for dismissal - want of jurisdiction 9 Counsel for the fourth respondent, the State of Tasmania, by a motion notice of which was given on 25 November 2003, seeks the dismissal of this proceeding, primarily on the basis that this Court has no jurisdiction and that the proceeding is an abuse of process. 10 The application is in the following terms: " APPLICATION Inter alia Banking Act 1959; Cheques Act; Mental Health At 1996 (TAS); Trustee Act 1898 (TAS); A. DETAILS OF CLAIM On the grounds appearing in the accompanying Statement of Claim the Applicant seeks the following relief: