FEDERAL COURT OF AUSTRALIA

Mentyn v Westpac Banking Corporation [2004] FCAFC 149

Banking Act 1959

Cheques Act 1986

NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 Appr

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Foll

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Cons

JEAN-PAUL MENTYN V WESTPAC BANKING CORPORATION, TASMANIAN PERPETUAL TRUSTEES LTD, THE SUPREME COURT OF TASMANIA, THE STATE OF TASMANIA, A D PEARCE & CO, JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE, ARCHER BUSHBY, RAE & PARTNERS, SHIELDS HERITAGE, GUNSON WILLIAMS, JACKSON AND TREMAYNE, THE LAW SOCIETY OF TASMANIA

T18 OF 2003, T3 OF 2004, T4 OF 2004

KIEFEL, WEINBERG AND STONE JJ

28 MAY 2004

HOBART

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for leave to appeal is dismissed.

2.         The application of 17 March 2004 is dismissed.

3.         The application for adjournment and other orders filed on 26 May 2004 is dismissed.

4.         The appellant is to pay each of the respondents’ costs of the appeal and the applications.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     Mr Mentyn brought proceedings in this Court arising out of a contract for the purchase of land which he did not complete.  This resulted in an action being brought by the vendors, Mr and Mrs Falcone, in the Supreme Court of Tasmania.  The result was adverse to Mr Mentyn.  Mr Mentyn brought an appeal from this decision but for reasons not relevant to this appeal it has not been heard.  In addition, in these proceedings he sought orders declaring the contract void, the return of deposit monies and damages. 

2                     His Honour the primary Judge held that this Court did not have jurisdiction to consider the matter or to make the orders sought.  Although there was reference in the application to two Commonwealth Acts – the Banking Act 1959 and the Cheques Act 1986 -  the claims were not in reality brought under them. 

3                     The first issue for this Court is whether leave to appeal from the decision of the primary judge is necessary.  The State of Tasmania submits, in reliance upon NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395, that an order dismissing an application for want of jurisdiction is interlocutory in character, at least where it does not finally dispose of the parties’ rights.  We consider this submission to be correct.  Mr Mentyn’s rights are able to be pursued in a State court.  We add that, in considering this issue, we have not placed any weight upon Mr Mentyn’s own submission that the order was indeed interlocutory, and that he therefore required leave, since it proceeded from an erroneous understanding of the nature of an interlocutory order. 

4                     Leave should not be granted, in our view, in accordance with the principles referred to in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  The appeal has no prospects of success.  In that regard the Court has heard the arguments which would have been addressed on appeal and considered them. 

5                     There is in our view no error disclosed in his Honour’s reasoning on the question of jurisdiction.  Mr Mentyn relied upon the fact that a cheque was used in the transaction but, as his Honour held, that does not convert the claim to one under the Cheques Act. 

6                     Mr Mentyn also argued that his Honour ought to have disqualified himself.  Two bases were given for this:  because his Honour had cross-vested an earlier application to the Supreme Court and because his Honour allowed a subpoena to issue regarding Mr Mentyn’s medical records.  It is readily apparent that his Honour considered the earlier claims arose out of the same facts which formed the basis of the Supreme Court proceedings and ought to be heard with them.  Nothing can be inferred from this approach remotely relating to bias.  Nothing can be discerned from his Honour’s issue of a subpoena which reflects in any way upon his Honour’s view of Mr Mentyn.  Further, his Honour did not in the result read the medical records, and nor did anyone else. 

7                     The application was entirely misconceived.  There was no basis in law for it and his Honour was, in our view, justified in ordering that Mr Mentyn pay costs on an indemnity basis.  His Honour’s approach accords with that discussed in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233.  Mr Mentyn has not provided an argument to the contrary.

8                     The application for leave to appeal will be dismissed with costs.  The application of 17 March 2004, seeking orders to set aside the judgment, turns essentially upon the same grounds and will be dismissed.  The application for adjournment and a series of additional orders filed on 26 May 2004 should also be dismissed.  The application for adjournment was not pursued. No basis is apparent for any of the other orders sought, most of which are unconnected with the appeal.

Associate:

Dated:              28 May 2004