Mentyn v Falcone; Mentyn v Pearce
[2004] TASSC 92
•3 September 2004
[2004] TASSC 92
CITATION: Mentyn v Falcone; Mentyn v Pearce [2004] TASSC 92
PARTIES: MENTYN, Jean-Paul
v
FACLONE, Jeffrey James
FALCONE, Vivien MayWILLIAMS, Timothy John
MENTYN, Jean-Paul
vPEARCE, Arthur David
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 107/2003
FCA 108/2003
DELIVERED ON: 3 September 2004
DELIVERED AT: Hobart
HEARING DATES: 4, 7 June 2004
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS:
Procedure – Judgments and orders – Enforcement of judgments and orders – Execution against property – Other writs and modes of execution – Charging order – Jurisdiction to make order to show cause not affected by filing conditional appearance.
Rules of Court 2000, r931.
Aust Dig Procedure [519]
REPRESENTATION:
Counsel:
FCA 107/2003
Appellant: Self-Represented
Respondents: D J Gunson SC
Solicitors:
FCA 107/2003
Appellant: Self-RepresentedRespondents: Gunson Williams
Counsel:
FCA 108/2003
Appellant: Self-Represented
Respondents: P L Jackson
Solicitors:
FCA 108/2003
Appellant: Self-Represented
Respondents: Jackson & Tremayne
Judgment Number: [2004] TASSC 92
Number of Paragraphs: 27
Serial No 92/2004
File Nos FCA 107/2003FCA 108/2003
JEAN-PAUL MENTYN v JEFFREY JAMES FALCONE,
VIVIEN MAY FALCONE, TIMOTHY JOHN WILLIAMS
JEAN-PAUL MENTYN v ARTHUR DAVID PEARCE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
SLICER J
EVANS J
3 September 2004
Order of the Court
Appeal dismissed
Serial No 92/2004
File Nos FCA 107/2003FCA 108/2003
JEAN-PAUL MENTYN v JEFFREY JAMES FALCONE,
VIVIEN MAY FALCONE, TIMOTHY JOHN WILLIAMS
JEAN-PAUL MENTYN v ARTHUR DAVID PEARCE
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
3 September 2004
These are two appeals from two orders made by Crawford J on 20 October 2003. In M286/2003, Mr and Mrs Falcone and Mr Timothy Williams, legal practitioner, commenced proceedings by the issue of an originating application. In M297/2003, Mr Arthur Pearce, a legal practitioner, also commenced proceedings by the issue of an originating application. In both cases the respondent was the appellant, Mr Mentyn.
Both originating applications sought the same orders with respect to funds that were paid into Court by Tasmanian Perpetual Trustees on 23 November 2000.
The originating applications were served upon the appellant. In M286/2003, the appellant entered a conditional appearance on 14 October 2003. In M297/2003, a conditional appearance was entered on 20 October 2003. In both proceedings the appellant filed an application to set aside the originating application upon grounds that are obscure and prolix. Both applications were listed for hearing before the learned Chief Justice on 10 November 2003. He ordered that they be heard together. It appears that at the hearing, the appellant made submissions that the Chief Justice should not deal with the application because he was biased against the appellant. The record of proceedings showed that after virtually a whole day of hearing, no order was made and the applications were adjourned to a date to be fixed.
Neither has been subsequently re-listed for hearing and, accordingly, the applications made pursuant to the Supreme Court Rules 2000, r168, with respect to the filing of conditional appearances, remain unresolved. It might be added that on 12 November, two days after the hearing before the Chief Justice, the appellant filed another application, purportedly pursuant to r168, but that has not been dealt with either.
Meantime, the originating applications came on for hearing before Crawford J on 20 October 2003. At that time the conditional appearance in M297/2003 had not been filed (although it was filed later the same day) and an application to challenge jurisdiction had not been filed in either case. Charging and stop orders were sought with respect to the fund in Court.
Although in both cases the appellant was served with the applications, such service was unnecessary, for the Supreme Court Civil Procedure Act 1932, ss167 and 168, authorise the making of the orders under attack by this appeal upon applications made ex parte in the first instance, calling upon the person named in the order to show cause why a charging order and a stop order should not be made. Although the appellant had notice of the hearings, he elected not to appear and, on 20 October 2003, the hearing of both applications proceeded ex parte.
Affidavit evidence was read upon the hearing of the applications which established that the appellant was indebted to the respondents for considerable sums of money by way of the costs of unsuccessful litigation prosecuted by the appellant. Affidavit evidence also established that prima facie, the appellant had an interest in the funds in Court, but had made no application to have the money paid out of Court to him as is provided for by r795. The affidavits otherwise complied with r931. Accordingly, Crawford J made an order in each case:
· On the date specified the appellant show cause why a charging order should not be made for the benefit of the respondents in respect of the appellant's interest in the fund in Court.
· No part of the funds to be paid out of Court unless notice is first given to the respondents.
The appellant has appealed against the making of these orders.
As best can be made out from the notice of appeal, grounds 1 and 2 complain that the learned judge at first instance should not have made the orders because the filing of a conditional appearance operated to deprive the Court of jurisdiction to make any order until after there had been a determination upon an application taken out pursuant to r168. The appellant's understanding of the nature of a conditional appearance is misconceived. The filing of a conditional appearance does not affect the jurisdiction of the Court. It merely gives notice that a respondent or a defendant reserves the right for up to 14 days to argue that the Court does not have jurisdiction to make the orders sought. If the respondent or defendant wishes to pursue that argument, he or she must file an application (as did the appellant) seeking an order that the originating process or its service be set aside. Jurisdiction is not affected by the simple expedient of filing and serving a conditional appearance, nor is it affected by filing and serving a r168 application. It can only be affected by an order of the Court made upon the determination of a r168 application. As I have indicated, that determination remains unresolved.
The appellant also submitted that because the money paid into Court was paid in pursuant to the provisions of the Trustee Act 1898, the Court has no jurisdiction to make the orders it did make. There is simply no substance in this submission. The provisions of the Supreme Court Civil Procedure Act, s167, and the definition of the word "Funds" in r931, clearly empower the making of charging and stop orders with respect to monies paid into Court by a trustee pursuant to the Trustee Act. The appellant also submitted, in effect, that it was up to him to confer jurisdiction upon Crawford J, and as he did not appear when the subject orders were made, he had no jurisdiction. This submission is linked to his primary argument that the filing and serving of a conditional appearance operates, as he submitted, to put a "stop on everything". Of course, that submission must fail. It is the law that confers jurisdiction on the courts, not the appearance of litigants in those courts.
There is no substance in the appellant's grounds or submissions. I would dismiss the appeal.
File Nos FCA 107/2003
FCA 108/2003
JEAN-PAUL MENTYN v JEFFREY JAMES FALCONE,
VIVIEN MAY FALCONE, TIMOTHY JOHN WILLIAMS
JEAN-PAUL MENTYN v ARTHUR DAVID PEARCE
REASONS FOR JUDGMENT FULL COURT
SLICER J
3 September 2004
The respondents made separate applications in accordance with the Supreme Court Rules 2000, r931, seeking orders that certain costs orders made in their favour against the appellant be paid from funds paid into court by Tasmanian Perpetual Trustees. The circumstances of the payment to the court of that money have been stated in Mentyn v Law Society [2004] TASSC 24, Slicer J. There was a nexus between the money and the costs orders obtained by the respondents.
The originating applications were those of a form not intended to be served and had the effect of requiring the appellant to show cause why certain orders ought not be made. However both were served and the appellant entered conditional appearances in M286/2003 (involving the respondents to FCA 107/2003 and M297/2003 FCA 108/2003) on 14 and 20 October 2003, respectively. In further response as required by r168(4), the appellant made applications to set aside each originating application upon various grounds which challenged the right of the respondents to make claim to the money. Those secondary applications were listed to be heard in this Court on 10 November 2003, but following a contention that the hearing judge disqualify himself on the ground of bias, they remained unresolved.
In the meantime, the original applications came before another judge on 20 October 2003. The appellant did not appear, having indicated to a court officer that he did not believe he was required to so do because of the listing of his own interlocutory applications. The respondents did appear through counsel and succeeded in obtaining "ex parte orders" that:
"1 Pursuant to Rule 937 of the Supreme Court Rules 2000 no part of the funds paid into the Court by Tasmanian Perpetual Trustees Limited on the 23rd day of November 2000 ('the funds') pursuant to Rule 794(1) of the Supreme Court Rules or income from the funds, be transferred, sold, delivered, paid or otherwise dealt with unless notice is first given to the Applicant.
2 The Respondent show cause on Monday the 10th day of November 2003 at 10.00 am why a charging order should not be made in favour of the Applicant in respect of the Respondent's interest in the funds so as to secure the payment to the Applicant of money due and payable to the Applicant by the Respondent pursuant to an order made by His Honour Mr Justice Blow on the 7th day of October 2002 in proceedings in this Court between the Applicant and the Respondent No CV 3 of 2002.
3 The Respondent show cause why a charging order should not be made in favour of the Applicant in respect of the Respondent's interest in the funds so as to secure the payment to the Applicant of money due and payable to the Applicant by the Respondent pursuant to an order made by His Honour Mr Justice Underwood on the 1st day of April 2003 in proceedings in this Court between the Applicant and the Respondent No 51 of 2003.
4 Pursuant to Rule 795(3) of the Supreme Court Rules service of this Originating Application on any other person be dispensed with."
The respondents' originating applications were of a nature and form permitted by the Supreme Court Civil Procedure Act 1932, ss167 and 168, which authorises the making of "show cause" orders. It remains for the respondents to establish whether the money paid into Court is of a nature susceptible to the legislative provisions. Order 4, made on 20 October, was directed at parties who might have had an interest in the money and has no relevance to these appeals. However, given that irrespective of the outcome of these appeals, the substantive issues will require future resolution, the respective parties might consider that the evidence suggests that the wife of the appellant has an interest in the money paid into Court and that the order dispensing with service may need to be revisited.
The orders made on 20 October did no more than reflect a prima facie case that the money was susceptible to a charging order, that the appellant had an interest in the money, and that the respondents had obtained taxation orders, and had sufficient interest in the obtaining of a charging order.
The sole issue of appeal which is considered in these reasons for judgment concerns the effect of a "conditional appearance". The remaining grounds have been considered by Underwood J in his concurrent judgment and I agree with both his reasoning and conclusions.
The notice of conditional appearance entered in respect of M286/2003 which is in terms similar to that filed in M297, states:
"1 The originating process number M286 is essentially legally incompetent and being without justification is inherently inadequate. The Application is essentially attempting to defeat a Trust.
2 All parties including the court staff, 5 judges, Attorney General, Secretary of Justice, Tasmanian Trustees, the Applicants, the 3 firms unlawfully stated as having an interest in the funds, and the firm acting for the Applicants. All parties have committed unconscionable conduct and are attempting to consolidate a deliberate and wilful fraud on the Respondent.
3 Therefore, the service of said process is automatically invalid.
4 Supreme Court Rule 90c was breached by Tasmanian Trustees in paying an alleged Trust fund into court. Together with A D Pearce they had created a fraudulent 'sham trust'. Tasmanian Trustees Ltd and A D Pearce have exposed themselves to the torts and crimes of conversion and misappropriation
5 Tasmanian Trustees failed to establish their bona fides as Trustee, as had also A D Pearce.
6 Four (4) Tasmanian Supreme Court judges have given 'advice' to the Respondent and thereby placing themselves in a position of conflict of interest. These four judges attempted to impose their pseudo‑authority on a Respondent who honestly maintained (and maintains) his autonomy and sole discretion with respect to the funds he had sent from New Zealand to A D Pearce & Co.
7 Chief Justice Cox was sent a fax on 5th June 2002 and further 8th August 2003 headed:
application for moneys unlawfully held in court
to be paid in full from the Consolidated Fund for default of the Registrar.
Cox J [sic] chose to treat this letter with contempt by ignoring it, all the time knowing that the money was 'not before the court' and that the Registrar had been impersonating a judge when unlawfully accepting the funds. By his refusal to acknowledge a lawful request Cox J [sic] has disqualified himself from hearing any application to further defraud the Respondent.
8 At all times the Respondent was sole Trustee of his own funds. At no time was this Trusteeship transferred to any other person.
9 Court rule 931 specifies that the Respondent 'show cause' M286 fails to require the Respondent 'show cause why a charging order should not be made'. M286 is an attempt to subvert justice. M286 is a deliberate breach of court rules in that it denies the Respondent a fair trial of the facts.
10 M286 seeks to further subvert justice by not following Rule 795(4) Any direction dispensing with service must be obtained and stated in the application before service of it on any other person. Gunson Williams have failed to obtain such direction and by definition fails to state such direction."
It is difficult to discern the substantive issues stated in the appearance but, for the purposes of this appeal, it will be accepted that they denied the jurisdiction of this Court to make the orders sought, challenged the province of the money and put in issue the validity of the applications. The question is whether the effect of the filing of a "conditional appearance" precluded the making of interim or "show cause" orders.
The Supreme Court Rules, r168, relevantly provides:
"168 ¾ (1) A defendant or respondent in any originating proceeding may file and serve a notice of conditional appearance by which the defendant or respondent ¾
(a)denies the jurisdiction of the Court; or
(b)reserves the right to apply for an order setting aside the originating process or its service, on the ground of any informality or irregularity which renders the originating process or its service invalid.
(2) …
(3) A defendant or respondent does not submit to the jurisdiction of the Court by a conditional appearance, except as to the costs occasioned by ¾
(a)the filing and service of the notice of conditional appearance; or
(b)by any application under this rule.
(4) On filing a conditional appearance, a defendant or respondent may apply to the Court or a judge for an order to set aside the originating process or its service.
(5) Unless the Court or a judge otherwise orders, a notice of conditional appearance becomes, and operates as, an unconditional notice of appearance if an application under subrule (4) ¾
(a)is not made within 14 days after filing the notice; or
(b)is dismissed."
Rule 168 replicates the previous Rules of the Supreme Court 1965, O13, r24.
The purpose of the rules is to enable a litigant to contest the jurisdiction of the Court or to maintain a claim of irregularity in the proceedings without submitting to the jurisdiction. While an appearance, especially in the case of an unrepresented litigant, ought be allowed latitude (Laurie v Carroll (1958) 98 CLR 310) it ought not include grounds going to the merits of the contentions to be advanced by the party. However, as Dixon CJ, Williams and Webb JJ said in Laurie v Carroll (supra) at 335 – 336:
"The fact is that the defendant Laurie insisted upon his objection to jurisdiction and substituted service but carried his objection to what had been done further than was open to him. That could not be construed as a waiver of the objections upon which he was insisting nor could it be considered as in any way inconsistent with those objections."
Here, the appellant had filed process which did seek to set aside the originating application. But in respect of M286/2003, there is no question of foreign jurisdiction in the sense referable to the test of locus forii. In this case, the application to obtain a charging order on the basis of a costs order made by the Federal Magistrates Court on 27 June 2002 in favour of the third respondent to FCA 107/2003 might be subject to such an argument, that amounts to no more than an issue of "balance of convenience rather than jurisdiction" (SV Pierre v South American Stores [1936] 1 KB 382; Oceanic Sun Line Special Shipping Company Inc v Fay (1987 – 1988) 165 CLR 197). On either approach the conditional appearance here did not raise the issues of "oppression" or "vexatious" in the context of a choice of forum (Oceanic Sun Line (supra)). Rather it challenges the power of the Court to make the orders sought because of the status of the money and the method chosen to obtain it.
The orders made on 20 October 2003 did not vitiate the appellant's denial of jurisdiction or the claims of informality or invalidity. The status of the "conditional appearance" remains intact until the concurrent application to "set aside" has been determined in each case. Here the appeal is premature. The orders did no more than protect the subject of the applications in the sense that a Mare*va order might operate and to require the appellant to "show cause". He remains entitled to "show cause" on the basis that the Court lacks jurisdiction, that the forum chosen for the enforcement of the federal order is inappropriate, or that the process is invalid or beyond power. The orders did not deprive him of the right to maintain that he or the money was not subject to jurisdiction (Huddlestone v National Mutual (No 2) 43/1997). His objection was akin to "appearing under protest" (Keymar v Reddy [1912] 1 KB 215) and such protest is preserved.
The learned primary judge understood the jurisdictional issue when he said in an exchange with counsel:
"Look, I'm well aware he's aware of the hearing date because he spoke to Mr Farmer about it, and said he doesn't intend to be here. And yes, I would certainly allow him to enter his appearances and he might want to object to jurisdiction himself, to this one."
and in his ex tempore reasons, stated:
"And I propose to make an order that Mr Mentyn show cause why a charging order should not be made. It is apparent from the affidavit in support of the originating application that this application is based on an order – or two orders for costs that were made in favour of the applicant against the respondent which on their prima facie remain unsatisfied. It may be that there is some argument to it. It may be that Mr Mentyn will seek to challenge the jurisdiction of the court – okay – he will be entitled to do that, to oppose the making of the charging order and he will be entitled to challenge the jurisdiction of the Court if the rules entitle him to do that. But it is certainly, in my view, appropriate that I make the first order calling on him to show cause why the charging order shouldn't be made."
His Honour then fixed 10 November 2003 as the date of return of the "show cause order" when the proceedings became subsumed into the matters before the Court on that day. Those matters have as yet to be resolved.
In my opinion, the appeal ought be dismissed.
File Nos FCA 107/2003
FCA 108/2003
JEAN-PAUL MENTYN v JEFFREY JAMES FALCONE,
VIVIEN MAY FALCONE, TIMOTHY JOHN WILLIAMS
JEAN-PAUL MENTYN v ARTHUR DAVID PEARCE
REASONS FOR JUDGMENT FULL COURT
EVANS J
3 September 2004
I agree with the reasons of Underwood J and the order he proposes.
0
3
0