FEDERAL COURT OF AUSTRALIA

Mentyn v Westpac Banking Corporation [2004] FCAFC 156

COURTS AND JUDGES – application for disqualification of Judge – allegations of actual and perceived bias – Judge conducted call-over in preparation for appeal – Judge directed notice of motion seeking same relief as subject matter of appeal be heard with appeal – allegation that Judge in contempt of Court – assertion that Judge improperly communicated with respondents – no evidence produced to support any claims made – principles governing such applications

Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294 applied

Webb v The Queen (1994) 181 CLR 41 at 67-68 applied

Trustees of the Christian Brothers v Cardone (1995) 57 FCR 327 at 333 applied

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 VIVIAN MAY FALCONE, ARCHER BUSHBY, RAE & PARTNERS, SHIELDS HERITAGE, GUNSON WILLIAMS, JACKSON AND TREMAYNE and THE LAW SOCIETY OF TASMANIA

T18 OF 2003, T3 OF 2004, T4 OF 2004

KIEFEL, WEINBERG AND STONE JJ

28 MAY 2004

HOBART

THE COURT ORDERS THAT:

1.             The application be refused.

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

RULING ON APPLICATION

WEINBERG J:

1                     By motion, dated 26 May 2004, the appellant requests that I disqualify myself from any further participation in this appeal.  The application is made on the basis of bias, actual and perceived.  The basis of the claim is that I have committed contempt of court, communicated with various respondents without the knowledge of the appellant, and have engaged in unconscionable, unconscientious or inequitable conduct and conduct inconsistent with honesty and fair dealing.  To the extent that I can understand them, the appellant's grievances appear to stem from a call-over of this appeal that I conducted by video link from Melbourne on 10 February 2004.

2                     On that day, I directed that the appeal be listed for hearing on a date to be fixed and allocated one day for the hearing.  The appellant had foreshadowed that the appeal would take at least a week to hear.  In substance, the appellant appears to be aggrieved by the fact that I directed that a notice of motion set down for hearing on 17 March 2004, which seemed to me to raise essentially the same questions as are raised in this appeal, be adjourned to be heard by the Full Court, together with the application for leave to appeal and the appeal itself.  I note that the transcript of the call-over indicates that when I asked the appellant whether there was any reason why his notice of motion should not also be considered by the Full Court, his response was:

“That’s what I’m assuming it would be, your Honour.”

In other words, the appellant did not object to the course that I proposed. 

3                     This morning, the appellant has indicated that he misunderstood my question to him and assumed that a separate Full Court would be constituted to deal with that particular notice of motion.  Be that as it may, it seems to me that nothing that occurred during the course of the call-over provides the slightest warrant for the suggestion that I am biased in either sense of that term.  Nor, in my view, is there any basis for the suggestion that I have engaged in any of the conduct attributed to me by the appellant. 

4                     So far as my having contacted the respondents without the appellant’s knowledge is concerned, that allegation is untrue.  The fact is, as would be expected, that I have not communicated with any of the respondents.

5                     I should add that I do not understand the allegation that I am somehow in contempt of Court.  That is, even assuming that a judge of this Court, performing judicial functions, can commit such a contempt.  In any event, no evidence has been produced to support that or any of the other allegations that the appellant has made. 

6                     The principles that govern applications of this type are not in doubt.  They are conveniently set out by the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294 and Webb v The Queen (1994) 181 CLR 41 at 67-68.  There is also a useful exposition of these principles in a decision of the Full Court of this Court in Trustees of the Christian Brothers v Cardone (1995) 57 FCR 327 at 333 per Gallop J.  I refer in particular to his Honour’s observations in pars (b) and (c) that judges should not too readily accede to applications for disqualification and should resist being driven from their courts by the conduct or assertion of parties.

7                     It follows, in accordance with those principles, that there is no reason why I should not continue to participate in this appeal.  I reject the appellant’s application.

Associate:

Dated:              28 May 2004