FEDERAL COURT OF AUSTRALIA

Mentyn v Westpac Banking Corporation [2003] FCA 1521

JEAN-PAUL MENTYN v WESTPAC BANKING CORPORATION & ANOR

T18 of 2003

HEEREY J

11 DECEMBER 2003

HOBART

THE COURT ORDERS THAT:

1. The applicant's notice of motion dated 9 December 2003 is dismissed. 
2. The document on the Court file, identified as document number 22, be removed from the file.
3. The documents produced under subpoena by the Practice Manager of the Derwent Valley Medical Centre be returned immediately to the Medical Centre. 
4.  The application is dismissed.
5. The applicant pay the costs of all respondents on an indemnity basis. 

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

REASONS FOR JUDGMENT

1                     On 21 November 2003 the applicant, Mr Jean-Paul Mentyn, commenced the present proceeding against Westpac Banking Corporation, Tasmanian Perpetual Trustees Limited, the Supreme Court of Tasmania, the State of Tasmania, six firms of solicitors, the Law Society of Tasmania and Geoffrey James Falcone and Vivian May Falcone.

2                     The proceeding arises out of the purchase by the applicant of a property at St Marys in August 1999.  Mr and Mrs Falcone were the vendors.  Mr Mentyn did not complete the purchase and the vendors commenced proceedings in the Supreme Court of Tasmania on 21 August 2000.  Initially they sought specific performance but subsequently they accepted the applicant’s repudiation and claimed damages.

3                     There are a number of notices of motion before the Court this morning including one filed by the applicant on 9 December 2003.  It claimed various relief including orders for punishment for contempt of various of the respondents, an order that the Federal Court “exercise inherent and/or accrued jurisdiction over all of these associated State court matters and relevant Law Society complaints” and awards of exemplary and punitive damages.

Disqualification application – apprehended bias

4                     The matter raised by the notice which requires immediate attention is a claim that I should disqualify myself by reason of apprehended bias.  This application is founded largely on an order I made on 11 June 2002 cross-vesting to the Supreme Court of Tasmania an earlier proceeding relating to the St Marys property (T37 of 2001).  I made that order because, as already mentioned, there was already in existence an action in the Supreme Court concerning the property.  The fact that the proceeding T37 of 2001 concerned the sale of real property in Tasmania seemed to be an added reason for having the matter dealt with in the Supreme Court.

5                     It is plain enough that my decision to make the order did not rest on any question of the character or integrity of the applicant; rather it was a matter of self-evident convenience.  I therefore do not think that any fair-minded observer would  think that I might not bring an unprejudiced mind to any further hearing of the present matter because of the order I made.  The applicant complained that I did not ask for evidence and accepted statements made by Mr Gunson SC, who then appeared for the vendors.  However, as I say, the desirability of making such an order seemed obvious.

6                     The applicant has also relied on a matter which has arisen recently.  The Director of Public Prosecutions for Tasmania, who acts for the State of Tasmania and, insofar as it is capable of being sued, the Supreme Court, sought leave to issue a subpoena returnable today addressed to the Practice Manager of the Derwent Valley Medical Centre to produce the applicant's medical records.  I take the view that litigants are entitled to have evidence produced before a Court pursuant to subpoena; the question of what use is made of that material is then a matter for the judge hearing the matter.  Accordingly I gave leave.  The material has been produced pursuant to subpoena.  I have not looked at it.  The use that is to be made of it will depend on further submissions by the party that sought the issue of the subpoena. 

7                     The only other matter I think I should mention at this stage in relation to the application that I should disqualify myself for apprehended bias is that the applicant said he did not appeal against my order of June last year because he was in shock.  He told the Court today that he had suffered from bi-polar disorder although he says he is now better.

8                     I should note that the proceeding in the Supreme Court was heard by Blow J over a period of seven days.  His Honour gave judgment on 29 August 2003 upholding the vendors’ claim for damages: Falcone v Mentyn [2003] TASSC 79.  So the applicant's notice of motion dated 9 December 2003, insofar as it seeks a stay on the ground of my apprehended bias, is dismissed.  The other relief will stand over pending consideration of the further notices.

Motion for dismissal – want of jurisdiction

9                     Counsel for the fourth respondent, the State of Tasmania, by a motion notice of which was given on 25 November 2003, seeks the dismissal of this proceeding, primarily on the basis that this Court has no jurisdiction and that the proceeding is an abuse of process. 

10                  The application is in the following terms:

“                                               APPLICATION

Inter alia Banking Act 1959; Cheques Act; Mental Health At 1996 (TAS); Trustee Act 1898 (TAS);

A.  DETAILS OF CLAIM

On the grounds appearing in the accompanying Statement of Claim the Applicant seeks the following relief:

1.         Damages, including Damages for Consequential loss

2.         a.  An order declaring the whole or any part of two         contracts/agreements signed in August 1999 void.

            b.  Orders that the Deposit of $5,000, and purchase moneys of $100,000+ be returned.

            c.  Orders for payment of compensatory Damages

3.         An order that Pecuniary penalties be awarded to the Applicant in addition to Damages”

11                  The statement of claim, after pleading the identity of the applicant and the various respondents, contains the following:

“              B.  CLAIM FOR INTERLOCUTORY RELIEF

AND the applicant claims by way of interlocutory relief:

1.         An order for Stay of Proceedings matters M286 & M298 of 2003 in the Supreme Court of Tasmania.

2.         An order under Order 27 r.7(2),(3) that the registrar request the production of funds (document) held by the Supreme Court of Tasmania and to have them sent to the Registry of the Federal Court.

3.         An order to Cross-Vest any State maters into the Federal Court in the interests of Natural Justice, and in the interests of the Public Interest.

4.         An order that A.D. Pearce & Co return with interest all funds sent from NZ to his Trust Account.

5.         An order that judgement (M41 of 2000) of Underwood J be reversed/reviewed on the basis that the Supreme Court of Tasmania did not have competent jurisdiction.  S.67 TPA

6.         An order that judgement (TRA 282 of 2002) of Blow J be reversed/reviewed on the basis that the Supreme Court of Tasmania did not have competent jurisdiction.  S.67 TPA

7.         An Injunction restraining all Respondents from continuing & compounding their tortuous/damaging actions.

8.         In particular an injunction restraining Mr Gunson & Mr Jackson from seeking payment out of the Tasmanian Supreme court.  Their action is an abuse of process.”

12                  Then under the heading “Particulars of Fraud and/or Breach of Trust and/or Conversion and/or Misappropriation” there is set out a lengthy narrative of some 92 paragraphs followed by particulars of damage.

13                  I think it is fair to summarise these, as Mr Turner for the fourth respondent put it, as a series of allegations of mishandling involving breach of trust, fraud, misrepresentation of funds initially sent to the respondent Pearce and then to Westpac.  As such the allegations in the statement of claim are fairly described by the heading “Particulars of Fraud and/or Breach of Trust and/or Conversion and/or Misappropriation”.

14                  The Federal Court only has such jurisdiction as is conferred on it by the Parliament:  Federal Court of Australia Act 1976 (Cth) s 19(1).  Consistently with that provision the Federal Court Rules provide that an application must specify, if the relief depends on the provisions of an Act, the Act and the provision relied on: O 4 r 3(1).  An application must conform with form 5 in Sch 1, which requires the application to, amongst other things, state the legislative basis of the Court's jurisdiction to hear it and grant the relief sought.

15                  I am quite satisfied that none of the claims, however vaguely put, satisfies those requirements.  There is no claim made out under the Banking Act 1959 (Cth) or the Cheques Act 1986 (Cth).  The complaints made are matters solely within State law in respect of which this Court has no jurisdiction.  Accordingly I uphold the application of counsel for the fourth respondent, which was supported, I might say, by most of the other respondents.  I will order the application be dismissed.

16                  I will order pursuant to O 14 r 8 that a scandalous document on the Court file, identified as document number 22, which refers to a judge of the Supreme Court, be removed from the Court file, and I will order that the documents produced under subpoena by the Practice Manager of the Derwent Valley Medical Centre be returned immediately to the medical centre.  These have not been looked at by me nor any of the parties with counsel.  The application will be dismissed, with costs.

17                  I will order that the applicant pay the costs of all respondents on an indemnity basis.  The applicant may apply for a stay if and when he files a notice of appeal.

Associate:

Dated:              18 December 2004