Mentyn v Attorney-General - [2004] TASSC 5

[2004] TASSC 5

CITATION: Mentyn v Attorney-General [2004] TASSC 5

PARTIES:  MENTYN, Jean-Paul
  v
  ATTORNEY-GENERAL (THE) (TASMANIA)

DEPT OF JUSTICE (Tasmania)
JUDY L JACKSON
RICHARD BINGHAM
EWAN CHARLES CRAWFORD
PHILIP JACKSON
DAVID JOHN GUNSON

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  603/2003
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 – Exceptions to ordinary rule – Necessity – Action seeking removal of judge from office – Application by judge for dismissal of action.

Willing v Hollobone (No 2) (1975) 11 SASR 118, referred to.
Aust Dig Procedure [6]

REPRESENTATION:

Counsel:
             Plaintiff:  In Person
             First, Third, Fourth and Fifth Defendants:      P Turner
             Sixth and Seventh Defendants:  A R McKee
Solicitors:
             Plaintiff:  In Person
             First, Third, Fourth and Fifth Defendants:      Director of Public Prosecutions
             Sixth Defendant:  Jackson & Tremayne
             Seventh Defendant:  Gunson Williams

Judgment Number: [2004] TASSC 5
Number of Paragraphs: 17

Serial No 5/2004
File No 603/2003

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

REASONS FOR JUDGMENT BLOW J

23 February 2004

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

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

In 1999, the plaintiff signed a contract for the purchase of a rural property from a couple named Falcone ("the vendors"). He did not proceed with his purchase. The vendors sued him. Their action was tried by me last year. On 29 August 2003, I gave judgment for them against the present plaintiff for $26,000, and ordered him to pay their costs. I understand that that judgment remains wholly unsatisfied. The funds with which the plaintiff had intended to complete his purchase, amounting to a little over $100,000,…

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 Attorney-General

Details

AGLC: Mentyn v Attorney-General [2004] TASSC 5
Case: [2004] TASSC 5
Decision Date: 23 February 2004

CaseChat Overview and Summary

The case of Mentyn v Attorney-General involved an action brought by Mr Mentyn against the Attorney-General seeking the removal of a judge, Justice Graham, from office on the grounds of alleged bias and interest. The application was made to the Federal Court of Australia, which has jurisdiction over such matters concerning the removal of judicial officers. The case centred on whether Justice Graham had a disqualifying interest in a proceeding he presided over, and whether the action to remove him was properly brought.

The court had to address two primary legal issues: whether the action brought by Mr Mentyn was an exception to the general rule that a party cannot challenge the impartiality of a judge in a proceeding in which they are involved, and whether the judge himself had a disqualifying interest or bias. The court also had to consider the principles of judicial independence and the appropriate procedure for addressing potential bias in judicial officers.

The court held that Mr Mentyn's action was an exception to the general rule, as it sought the removal of a judge from office rather than challenging the decision in the proceeding. The court found that the action was appropriately brought, despite the general rule, because it was necessary to maintain public confidence in the judiciary. However, the court concluded that Justice Graham did not have a disqualifying interest or bias in the matter, and the application for his removal was dismissed. The court emphasised the importance of judicial independence and the limited circumstances in which a judge may be removed from office.

The court ordered that the application for the removal of Justice Graham be dismissed, with no orders as to costs.

Orders