Our theme for this lecture is self-represented litigants seeking the disqualification or removal of judges. Let’s start with a testing case from Van Diemen’s Land before moving onto similar excitements emerging from Yarraside.
Blow by Blow
The plaintiff, one Jean-Paul Mentyn, made some agricultural swipes against a whole raft of worthies: the Tasmanian Attorney General Judy Jackson, the Secretary of the Attorney General’s Department Richard Bingham, Supreme Court Justice Ewan Crawford and lawyers Philip Jackson and David (“Clockface”) Gunson.
Mentyn sought the removal of Justice Crawford from office – immediately – and $1 million in damages because of “the intentional neglect of a person protected by the Mental Health Act and intentional ill-treatment by all defendants”.
For good measure the plaintiff also sought the removal of the judge hearing all this – Justice Alan Blow.
The case goes back to 1999 when Mentyn reneged on the purchase of a rural property. The vendors – a couple called Falcone – sued him and in August 2003 Blow J ordered that Mentyn pay the Falcones $26,000 plus costs. That judgment remains wholly unsatisfied.
The funds with which Mentyn had intended to complete the purchase came to more than $100,000, which was paid to the vendors’ original solicitor, Mr Pearce. The money was later sent to a trustee company who paid it into court.
In October last year the Falcones and a solicitor applied for a charging order against the money paid into court so as to enforce the judgment for $26,000 plus costs. Mr Pearce made a similar application as so to recover his costs arising from other proceedings.
Ewan Crawford J in ex parte proceedings last November ordered Mentyn to show cause why a charging should not be made in each matter. The plaintiff was so aggrieved by that decision that in this action he sought Crawford’s removal as a judge of the Supreme Court of Tasmania.
Mentyn also submitted that Blow remove himself from hearing the case because he had an interest in the outcome of the proceedings. After all, Crawford’s order to show cause was made for the purpose of facilitating the enforcement of cost orders made by Blow.
Justice Blow politely declined to step down, with the reassuring explanation:
” it is important to remember that judges do not make and enforce costs orders on the basis of whims, idiosyncrasies, or feelings about individual lawyers or litigants, but in accordance with established principles and practices.”
As to dismissing Crawford from the court, even if Blow might have relished the opportunity, he did feel constrained:
“Judges of this court do not have the power to sack one another… it is as simple as that.”
Philip Jackson and Clockface were being sued because they had appeared before Crawford in October last year for Mr Pearce and the Falcones respectively.
Blow dismissed the 22 points in Mentyn’s “Endorsement of Claim” which included allegations of judicial misconduct, misfeasance, malfeasance, breach of trust, breach of fiduciary duty, contempt, subverting the course of justice, abuse of discretion, deceptive and unconscionable conduct and “deliberate and willful [sic] breach of the Mental Health Act.”
No go said Blow, throwing out the whole sorry business on the basis that it was “untenable … groundless … manifestly faulty”.
Victorian Supreme Court “infested with Freemasons”
The justice system in Yarraside faced its fair share of distressing accusations in the case of NAB v Walter.
German immigrants Fritz, Ingrid and their daughter Carmen Walter – who represented themselves – made some upsetting allegations in their bid to stave off a $1,063,942 liability to the NAB over their failed brewery business in Albury-Wodonga.
The Walters’ claimed there was a conspiracy of paw-pumping Freemasonry among bankers and the judiciary.
In her judgment of February 16, 2004, Justice Dodds-Streeton outlined the Walters’ allegations thus:
“1. The Walters contended that the court lacked jurisdiction to hear and determine the proceedings and was unlawfully constituted because certain judges and other court officials are, or are suspected to be, Freemasons. They alleged that Freemasons administer and swear unlawful oaths, including oaths of allegiance to a foreign power, contrary to s.316 of the Crimes Act and s.321 of the Crimes Act. Further, the Walters contended that Freemasons are party to conspiracies to commit criminal acts and are otherwise implicated in criminal conduct.
2. Ms Walter read to the Court some oaths allegedly administered to, and taken by, Freemasons. The Walters served a subpoena on an associate of a judge of the court, requiring him to produce documentation which would reveal the identity of any judges, masters or other court officials or employees who were Freemasons.
3. The Walters contended that Freemasonry is a brotherhood of persons who habitually take unlawful oaths and who owe obedience to foreign powers. They alleged that in the course of their dealing with the NAB, Mr Fritz Walter (who is not a Freemason) failed to respond to a secret Masonic handshake made by an unidentified bank officer. The Walters claimed that in consequence, the NAB thereafter acted to the Walters’ detriment and ultimately sold their property. No evidence of the alleged handshake incident was adduced at any stage. However, the Walters asserted that alleged Freemasonry within the court precluded a fair trial of their claims. Ms Walter stated: ‘If the judge hearing the case were a Freemason, and the other party was a Masonic member as well and they had discussed the court case previously and made their decision while they were in the lodge’ then ‘a litigant could not win’.
4. Master Evans, whom the Walters believed to be a Freemason (as he would neither confirm nor deny membership), had made an order in the principal proceeding for trial by judge alone. Master Evans’ order was said to be of no effect, due to his alleged status as a Freemason.
5. Although I stated that I was not, and had never been, a Freemason, the Walters contended that the status of the individual judge hearing the proceeding was irrelevant. They claimed that the bench of the Supreme Court of Victoria was infested with Freemasons who were guilty of criminal acts, indictable offences and other unlawful conduct which contaminated the entire court.”
And as if to prove the Walkers’ point Justice Dodds-Streeton dismissed the Walters’ application last month, finding that none of their challenges to the court’s jurisdiction was of “any substance”.
Our breasts can swell with pride at the way judges keep true to their faith and patiently scribble detailed and solemn reasons in the face of such wretched taunts.
G. Snatch, Associate