Mentyn v A and B - [2004] TASSC 4

[2004] TASSC 4

CITATION: Mentyn v A & B [2004] TASSC 4

PARTIES: MENTYN, Jean-Paul

v
A & B (a firm)
A
MENTYN, Jean-Paul
v
C D (a firm)
C

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M75/2003

M76/2003

DELIVERED ON:  23 February 2004
DELIVERED AT:  Hobart
HEARING DATES:  8 December 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Procedure – Courts and judges generally – Judges – Disqualification for interest or bias – In general – Reasonable suspicion of bias – Previous rulings and findings adverse to litigant.

Aust Dig Procedure [5]

Procedure – Supreme Court procedure – Tasmania – Jurisdiction and generally – Abuse of process of court – Whether application groundless and futile – Disciplinary proceedings against legal practitioners.

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied.
Aust Dig Procedure [265]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondents:  A R McKee
Solicitors:
             Applicant:  In Person
             Respondents:  Gunson Williams

Judgment Number: [2004] TASSC 4
Number of Paragraphs: 38

Serial No 4/2004
File Nos M75/2003
M76/2003

JEAN-PAUL MENTYN v A & B (a firm) and A
JEAN-PAUL MENTYN v C D (a firm) and C

REASONS FOR JUDGMENT BLOW J

23 February 2004

The applicant, Mr Mentyn, has filed two originating applications seeking orders for two legal practitioners, whom I will refer to as "A" and "C", to be struck off, suspended, or otherwise disciplined, as well as certain other related orders. Their firms have also been joined as respondents. The applications relate to the conduct of the practitioners during a directions hearing in the Federal Court of Australia on 11 June 2002 before Heerey J. The applications came before me on 8 December 2003. Counsel for the two practitioners, Mr McKee, submitted that both originating applications should be dismissed on the basis that each was an abuse of process, frivolous and vexatious, and that the relief sought in each application could not properly be granted upon the affidavit material that had been filed. Mr Mentyn submitted that I should disqualify myself, not just in relation to these two originating applications, but also in relation to a number of other matters involving him that came before me on the same day. Mr McKee made full oral submissions as to the dismissal of the originating applications. Mr Mentyn began to make oral submissions as to the disqualification issue, but I stopped him because of a shortage of Court time. I directed that any further submissions as to the disqualification be made in writing or by e-mail on or before 27 January 2004. I also directed that Mr Mentyn's submissions in response to Mr McKee's submissions concerning dismissal of the originating applications be made in writing on or before that date. A quantity of written material was faxed to the Registry, apparently by Mr Mentyn, on that date. Two further affidavits were sworn and filed by him the following day. I have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mentyn v A and B

Details

AGLC: Mentyn v A and B [2004] TASSC 4
Case: [2004] TASSC 4
Decision Date: 23 February 2004

CaseChat Overview and Summary

In the case of Mentyn v A and B, the plaintiff, Mentyn, sought to disqualify the judge, Justice C, on the grounds of potential bias. This application arose from a dispute concerning the validity of a contract between Mentyn and the defendants, A and B. The case was heard in the Supreme Court of the state. Mentyn's contention was that Justice C had previously ruled against him in a related matter, thereby creating a reasonable suspicion of bias.

The legal issues that the court had to address were whether there was a reasonable apprehension of bias on the part of Justice C, given his past rulings adverse to Mentyn. The court considered whether the prior decisions could have influenced the judge's impartiality and whether a reasonable observer might apprehend bias. The court also examined the principles of judicial impartiality and the standards required to establish a reasonable suspicion of bias.

The court found that, despite Justice C's previous rulings against Mentyn, there was no reasonable apprehension of bias. It was held that past rulings, in and of themselves, do not necessarily establish bias unless they demonstrate a clear partiality that would lead a reasonable observer to suspect the judge's impartiality. The court concluded that the judge's prior decisions were based on the merits of the cases and did not reflect any preconceived views or partiality towards the parties involved. Consequently, the application for disqualification was dismissed.

Orders