Supreme Court of the ACT|2013-12-02|Before: Burns J

Australia and New Zealand Banking Group Limited v Manny (No 4) [2013] ACTSC 236 (2 December 2013)

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

[2013] ACTSC 236 (2 December 2013)

APPEAL - General principles - appeals from the Master - appeals against interlocutory orders of the Master - requirement for appeals against interlocutory orders of the Master to be heard by a single judge of the Supreme Court - "outmoded and inappropriate"

PROCEDURE - Miscellaneous procedural matters - distinction between interlocutory and final orders

PROCEDURE - Miscellaneous procedural matters - allegation of contempt of orders of the Family Court of Australia - decisions of the Family Court of Australia as decisions of a superior court of record - decision of that Court valid until set aside

PROCEDURE - Miscellaneous procedural matters - counterclaims - validity of decision to split from the main claim under r 471 - decision valid

PROCEDURE - Miscellaneous procedural matters - filing of submissions after subsequent to conclusion of the hearing - requirement for leave - application to unrepresented litigants - leave granted

Judiciary (Stay of Proceedings) Act 1933 (ACT), s 4

Court Procedures Rules 2006 (ACT), rr 441, 447, 462, 471, 1146, 1153

Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337

Ash v Hutchinson & Co (Publishers) Ltd [1936] 1 Ch 489

Attorney-General for the Northern Territory v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536

Australia and New Zealand Banking Group Ltd v Manny (Unreported, ACT Supreme Court, Burns J, 14 March 2012)

Australia and New Zealand Banking Group Ltd v Manny [2012] ACTSC 205

Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116

Australia and New Zealand Banking Group Ltd v Manny (No 2) [2013] ACTSC 143

Australia and New Zealand Banking Group Ltd v Manny (No 3) [2013] ACTSC 223

Bank of New South Wales v Murray [1963] NSWR 515

Browne v The Queen [2006] ACTCA 15

Callaghan v Hanson-Fox [1992] Fam 1

CAO v HAT [2013] QCA 272

Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44

Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246

Chapman v Caska [2005] NSWCA 113

Citibank Savings Ltd v Stergiou (1996) 66 FCR 587

Cleary v Rinaudo [2012] ACTSC 179

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2003) 203 CLR 194

Cox Brothers (Australia) Ltd v Cox [1934] HCA 16; (1934) 50 CLR 314

Crosland v Crosland [1947] P 12

Daewoo Australia Pty Ltd v Porter Crane Imports Pty Ltd [2000] QSC 50

Duchess of Kingston's Case [1775-1802] All ER Rep 623

Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48

Earl Bandon v Becher (1835) 3 Cl & Finn 479; [1835] EngR 316; 6 ER 1517

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318

Frazer v Walker [1967] 1 AC 569

Gray v Webb (1882) 21 Ch D 802

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

Hip Foong Hong v H Neotia & Co [1918] AC 888

Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hunt v Knabe (No 2) (1992) 8 WAR 96

In the Marriage of Lanceley [1994] FamCA 94; (1994) 18 Fam LR 71

In the Marriage of Warby [2001] FamCA 1469; (2001) 28 Fam LR 443

Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372

Jin v Ai [2011] ACTSC 70

John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd [1938] HCA 20; (1938) 60 CLR 1

Jonesco v Beard [1930] AC 298

Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; (2002) 44 ACSR 21

Lazarus Estates Ltd v Beasley [1956] 1 QB 702

Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268

Manny v Australian New Zealand Banking Group Ltd [2012] ACTCA 40

Manny v Australian New Zealand Banking Group Ltd (No 2) [2012] ACTCA 41

Manny v Sims [2011] ACTSC 58

Manny v Sims [2012] ACTCA 42

Manny v Sims [2013] ACTCA 9

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; (2005) 64 NSWLR 462

New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144

Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451

Re an application by Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881

Re the will of F B Gilbert (dec'd) [1946] NSWStRp 24; (1946) 46 SR(NSW) 318

R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351

Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158

R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185

Sirius Shipping Corporation v The Ship 'Sunrise' [2007] NSWSC 766

Staniar v Evans (1886) 34 Ch D 470

State Bank of Victoria v Parry [1989] WAR 240

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Union Offset Pty Ltd v Whigham (1977) 14 ACTR 43

Wills v Australian Broadcasting Corporation [2009] FCAFC 6; (2009) 173 FCR 284

Witham v Holloway (1995) 183 CLR 525

BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

3. The order for summary judgment given on 26 July 2013 be stayed for 28 days, until

1. The defendant, Jeff Manny, has appealed against a decision of the Master in which his Honour entered summary judgment for the plaintiff, the Australia and New Zealand Banking Group Limited (the ANZ Bank), on one of its claims and made other orders.

2. The proceedings are to be seen in the context of, but are not necessarily directly related to, other proceedings involving Mr Manny.

3. A short background is therefore of assistance in understanding this proceeding.

4. Mr Manny was a developer who had, by mid-2009, built up, through trusts and companies which he controlled, a substantial portfolio of residential and commercial real property. It appears that some of the property was acquired as a result of funds advanced by the ANZ Bank, secured by various means over various properties.

5. In circumstances not directly relevant, the ANZ Bank appointed receivers of certain of the residential and commercial properties over which it had mortgages for the purpose of collecting the rents of the properties and subsequently sought to sell the properties. On 21 January 2011, the ANZ Bank extended the appointment of the receivers to be receivers and manager of the charged property generally. On 28 February 2011, the ANZ Bank appointed administrators of certain of the companies.

6. On 27 October 2011, the ANZ Bank commenced these proceedings against Mr Manny by Originating Claim which was accompanied by a Statement of Claim for debt and possession of land.

7. The Statement of Claim pleaded two agreements by the ANZ Bank to provide credit to Mr Manny personally under the Agreements, included in the terms of each of which was a requirement that Mr Manny would make repayments during the term of each Agreement.

8. It further pleaded that Mr Manny had defaulted under each of the Agreements by failing to pay the sum of $11,683.45 on 2 September 2011.

9. Relevant default notices, it was pleaded, were served and thereupon the sums of $354,360.89 under the First Agreement and $70,330.60 under the Second Agreement became due and payable on 21 October 2011.

10. The Statement of Claim further pleaded that Mr Manny is the registered proprietor of certain property at Flynn and that he secured his performance under the Agreements by a Mortgage over that property granted to the ANZ Bank. The Mortgage required that Mr Manny pay the moneys due under the Agreements, where failing to make each such payment constituted a breach of his obligations under the Mortgage; that breach amounted to a default under the Mortgage.

11. Upon default, the Statement of Claim pleaded, the ANZ Bank was given a right to possession of the property. Mr Manny failed to pay the moneys that were due as at 2 September 2011 and, accordingly, the ANZ Bank served relevant notices of its intention to take possession of the property if the default was not remedied within thirty-one days after service of the notice, it was pleaded in the Statement of Claim.

12. The Statement of Claim further pleaded that the money unpaid as at 21 October 2011 was $424,691.49.

13. The Statement of Claim sought the following relief:

(a) Payment of the amount claimed of $424,691.49, being $354,360.89 owing under the First Agreement and $70,330.60 owing under the Second Agreement as at 21 October 2011;

(b) Possession of the Land, namely the residential lease at Flynn;

14. The interest claimed under the provisions of both Agreements was currently 7.10% p.a. from 22 October 2011 until the day of judgment.

15. The Statement of Claim also claimed costs which were payable under the Mortgage.

16. Mr Manny filed a Notice of Intention to Respond on 6 January 2012. Although generally following the prescribed form, it unnecessarily contained what can only be described as a commentary on the Statement of Claim alleging a range of procedural and substantive errors and asserting what was described as "a strong defence and counter claims". It was inappropriate to include this material in that document.

17. There were then a number of interlocutory skirmishes of various kinds made after that: Australia and New Zealand Banking Group Ltd v Manny (Unreported, ACT Supreme Court, Burns J, 14 March 2012), Manny v Australian New Zealand Banking Group Ltd [2012] ACTCA 40; Australia and New Zealand Banking Group Ltd v Manny [2012] ACTSC 205 and Manny v Australian New Zealand Banking Group Ltd (No 2) [2012] ACTCA 41.

18. In addition, Mr Manny commenced separate proceedings concerning the validity of the appointment of the receivers and administrators: Manny v Sims [2011] ACTSC 58. There were also appeals in those proceedings: Manny v Sims [2012] ACTCA 42; Manny v Sims [2013] ACTCA 9.

19. Finally, however, Mr Manny filed and served a Defence and Counterclaim on 16 November 2012. As Mr Manny had no legal representation, the rules of pleading were not observed but the following may be discerned from the document.

20. Mr Manny initially simply denied each of paragraphs 5 to 24 of the Statement of Claim. Thus, he admitted only the incorporation of the ANZ Bank and that it had agreed to provide credit to Mr Manny under the First Agreement. Every other allegation was, and was merely, denied. This, of course, is often insufficient for r 441 of the Court Procedures Rules 2006 (ACT).

21. It asserted, without required particularity, that the non-payment of the moneys due under the Mortgage (which mortgage, despite the denials, Mr Manny appears to have been admitted that he gave) was caused by the alleged unlawful appointment of the receivers and the administrators and their alleged unlawful behaviour. The best that can be said for these pleadings was that there might be a germ of a claim for an equitable set-off whereby the alleged conduct, were it to be properly claimed, and to sound in damages, might amount to an impeachment of the claim by the ANZ Bank. See Rawson v Samuel (1841) Cr & Ph 161 at 178; 41 ER 451 at 458. The pleadings, however, did not make out such a claim at all.

22. In addition, Mr Manny pleaded a Counterclaim alleging that there were terminations of Mr Manny's employment and of contracts of one of his companies with some of those companies in receivership and under administration. He alleged that these terminations caused him cash flow problems. There were a number of other allegations of behaviour that he alleged was contrary to law or had detrimental effects but failed to plead any actual causes of action.

23. On 7 February 2013, Mr Manny filed an amended Defence and Counterclaim. So far as the Defence was concerned, it made some differences. For example, Mr Manny altered the denial of a number of facts alleged in the Statement of Claim to a plea that he "doesn't deny" the relevant facts. Those would, in my view, amount to implied admissions under r 447 of the Court Procedures Rules, especially as the Statement of Claim clearly pleaded the relevant facts, as required by authorities such as Ash v Hutchinson & Co (Publishers) Ltd [1936] 1 Ch 489 at 503 (Greene LJ). There were, however, still denials to a number, but much reduced the number, of allegations in the Statement of Claim.

24. The matters to which I referred above (at [21]) were no longer pleaded in the Defence. Some seemed to be re-pleaded in the Amended Counterclaim. For reasons that will become apparent, I do not need to analyse the Counterclaim in detail. I note that it added the receivers and managers and administrators as additional parties, which is permitted in appropriate cases under r 462 of the Court Procedures Rules.

25. By Application in Proceedings dated 30 November 2012, the ANZ Bank sought judgment for the amounts claimed to be owing under the Agreements and for possession of the land mortgaged to secure the loans made under the Agreements.

26. The Application initially came on for hearing on 7 December 2012. On that day, Mr Manny sought and was granted leave to file a further Application in Proceedings seeking to set aside the ANZ Bank's Application in Proceedings for judgment (though it referred to the wrong date) or, alternatively, time to "file Notice of Intention to respond or defence" (notwithstanding that both had already been filed). There were other orders sought. The learned Master, not being satisfied that the ANZ Bank's Application should be dismissed, instead dismissed Mr Manny's Application but confirmed directions I had earlier made to prepare the ANZ Bank's Application for hearing. Mr Manny also filed, that day, an Amended Defence and Counterclaim.

27. Subsequently, the receivers and managers and the administrators each and separately (on 19 February 2013 and 22 February 2013, respectively) filed Applications in Proceedings seeking that the Amended Counterclaim be struck out so far as they were concerned, or for summary judgement for them on the Amended Counterclaim.

28. The Applications of the receivers and managers and the administrators came on for hearing on 7 June 2013 and, on 12 June 2013, the learned Master struck out certain portions of the Amended Defence and Counterclaim and ordered that Mr Manny pay the costs. See Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116. His Honour adjourned the proceedings for consequential orders and directions to 27 June 2013.

29. I do not need to record the tortuous history of the proceedings, but I note that the ANZ Bank's Application for judgment came on for hearing before the learned Master on 27 June 2013. The Application was heard over two days.

30. On 26 July 2013, the learned Master made the following orders:

1. There be judgment for the plaintiff for possession of the land being Section 10, Block 45 on Deposited Plan 3404 Flynn, contained in certificate of title Volume 647, Folio 1, and known as 42 Barber Crescent, Flynn in the Australian Capital Territory.

2. The counterclaim brought by the defendant be heard separately from the hearing of the proceedings brought by the plaintiff.

3. The counterclaim filed on 7 February 2013 be struck out.

4. The defendant is not permitted to file any additional pleading for his counterclaim without the leave of the Court.

5. Any application for leave to file a further pleading for the counterclaim be filed and served within 28 days of the publication of these reasons and that any such application annex a copy of the proposed pleading.

6. If any proposed pleading for the counterclaim requires or results in the joinder of additional parties to the proceedings then any application to join those parties be heard at the same time as the application for leave to file the proposed pleading and the application for leave to file the pleading be served on any proposed new party to the proceedings.

7. The defendant is to pay the plaintiff's costs of the application in proceeding dated 30 November 2012 and the amended application in proceeding dated 27 June 2013.

31. See Australia and New Zealand Banking Group Ltd v Manny (No 2) [2013] ACTSC 143.

32. Being dissatisfied with that decision, Mr Manny appealed against it.

33. Initially, by Application in Proceedings dated 2 August 2013, he sought a stay of orders 1, 2, 3 and 7 of those made by the learned Master. That Application came on for hearing before Nield AJ who, with the consent of the ANZ Bank (the other parties neither consenting nor opposing), made the stay sought.

34. I later varied that order on 1 October 2013 as Mr Manny told me that he was proposing to file a Further Amended Counterclaim, making a stay of order 3 made by the learned Master on 26 July 2013 no longer appropriate.

35. On 2 August 2013, an appeal against the decision of the learned Master was lodged by Mr Manny. Mr Manny initially appealed only against orders 1, 2, 3 and 7 of the learned Master but by an Amended Notice of Appeal filed on 26 September 2013, appealed from all the orders of the learned Master.

36. The appeal was heard on 24 October 2013 by me, sitting as a single judge of the Supreme Court.

37. Five issues arose at the hearing of the appeal. A further issue as to further submissions arose subsequent to the proceedings. I will address these issues in turn. The six specific issues are:

2. Should the hearing of the appeal have been vacated due to proceedings in the Family Court?

3. Was additional evidence able to be adduced on the appeal?

4. Should the appeal against the summary judgment be allowed?

5. Should the appeal against the orders on the Amended Counterclaim be allowed?

6. Should the further submissions of Mr Manny be allowed?

38. The ANZ Bank raised an initial argument that the appeal was not validly constituted because, it claimed, it was an appeal against a final order of the learned Master. Under s 9 of the Supreme Court Act 1933 (ACT), an appeal against a final order of the Master must be heard by the Court of Appeal; only an appeal from an interlocutory order of the Master is heard by a single judge. An appeal from an interlocutory order of a single judge of this court is to be taken, by leave, to the Court of Appeal (s 37E of the Supreme Court Act).

39. There are a number of issues, about this, which it is not inappropriate briefly to mention. In the first place, the width of the present jurisdiction of the Master, now coextensive with that of a single judge in civil matters (apart from appeals from the Magistrates Court and matters in the Court of Appeal), being a much wider a jurisdiction than that exercisable when the office of Master was first created, makes the distinction in the Court of where appeals from interlocutory orders are taken now quite outmoded and inappropriate. See Cleary v Rinaudo [2012] ACTSC 179 at [1]. This requires urgent legislative reform.

40. In the second place, the distinction between a final and an interlocutory order is never easy to draw. Indeed, as Gibbs CJ pointed out in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, "[t]he question [of] whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty". There are a multitude of decisions on the question of what order is interlocutory and what is final, some of which are not always readily reconcilable with each other. While the underlying policy of the distinction has value, the difficulty of deciding on which side of the grey line between the two kinds of decision any particular decision falls means that such a distinction should be used sparingly and when there are not only good policy reasons for it but no reasonable alternatives.

41. Where the one appeal court can hear appeals from both kinds of orders, but only appeals from interlocutory appeals by leave, as is commonly the case, the court can grant leave, if necessary nunc pro tunc, if the appeal is before it on the wrong basis but ought to be heard, even though leave was not initially granted. This can avoid injustice. This is not possible here, where the appeals from the different kinds of orders are heard by different courts.

42. It is worth mentioning that to align appeals from the Master with those from a single judge of this Court would also introduce the need for leave to appeal from interlocutory orders. Presently, a litigant has a right of appeal from an interlocutory order of the Master, but, had the same decision been made by a single judge (which it could easily have been), it would have required leave before the appeal could be brought. The sifting process that the requirement for leave permits has significant benefits to the costs and efficiency of litigation at a time when both are challenging to courts. I referred to the rationale for the need for leave in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 51; [23]-[27]. The points I made there remain valid.

43. The ANZ Bank submitted that the first order of the learned Master, as set out above (at [30]), was a final order and so any appeal had to be taken to the Court of Appeal.

44. The ANZ Bank submitted that an order granting summary judgment was a final order and this is what the learned Master had done.

45. Historically, the position of summary judgment orders was not clear cut. In Cox Brothers (Australia) Ltd v Cox [1934] HCA 16; (1934) 50 CLR 314, the High Court held that an order granting an application for summary judgment was an interlocutory order. That was, however, because, as the Court held (at 316), the order on the application was for leave to be given to enter judgment.

46. That is no longer required, however, and, as the learned Master did in this case as I set out above (at [30]), the judgment itself is now entered. Where that is the order made, the current weight of authority is very clearly that such an order is a final order. See Hunt v Knabe (No 2) (1992) 8 WAR 96 at 108-9; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; (2005) 64 NSWLR 462 at 464; [5]- [6]. The position may be different in the Federal Court of Australia because of the particular legislation regulating it: Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 at 291-5; [96]- [112] (Rares J).

47. That, however, is only part of the requirement. The order itself must "finally determine the rights of the parties in a principal cause pending between them" as Windeyer J pointed out in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443. It is, however, not enough that it finally determine the particular application out of which the order arises. In Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 at 441 (Barwick CJ), 444 (Gibbs J), the High Court described a final order as one which finally determines the rights of the parties.

48. In this case, the judgment of the learned Master resolved the issue of whether the ANZ Bank was entitled to possession; it did not, however, resolve the question of what, if any, debt was payable by Mr Manny to the ANZ Bank. In this sense, then, it was a partial summary judgment.

49. It is, however, clear that a partial summary judgment is not a final judgment, but is an interlocutory judgment, as held in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at 392-3; [64]- [70] (Rares J), 418-22; [174]-[191] (Gordon J). See also Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348 at 360; John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd [1938] HCA 20; (1938) 60 CLR 1 at 35, and Wills v Australian Broadcasting Corporation [2009] FCAFC 6; (2009) 173 FCR 284 at 290; [30].

50. Accordingly, I dismissed the challenge to the competency of the appeal.

51. Mr Manny sought that the hearing of the appeal not proceed. The basis for his application was that he had commenced proceedings in the Family Court of Australia against the ANZ Bank for contempt of the orders of that Court and that he would be seeking to have these matters cross-vested to that Court.

52. It was not clear to me what the basis was for the contempt. It seemed to arise from orders made by that Court on 13 July 2010 when the Court made an order, inter alia, that:

The husband [Mr Manny] is declared to be the owner both at law and in equity of the property situate and known as 42 Barber Crescent, Flynn, ACT

53. In its very literal form, this declaration might be suggested to be a declaration that Mr Manny is the legal and equitable owner of the property to the exclusion of the ANZ Bank as mortgagee. It appears that, at least at some stage, the ANZ Bank was a party to those Family Court proceedings (it is so described in the title to the order). At the very least, it was clear it had notice of the proposed orders. That would permit, it would appear, the Court to make a declaration binding the ANZ Bank, as a third party, as held in In the Marriage of Warby [2001] FamCA 1469; (2001) 28 Fam LR 443 at 477; [87]. See also In the Marriage of Lanceley [1994] FamCA 94; (1994) 18 Fam LR 71 at 89-90.

54. I was, however, provided with little assistance to determine the exact extent of the order. Nevertheless, doing the best I can, I considered that it did not extinguish the rights of the ANZ Bank as mortgagee for the following reasons:

1. It did not say so. The declaration, presumably made under s 78 of the Family Law Act 1975 (Cth), was not made to quell any controversy between the parties to the marriage (that is, Mr Manny and his former wife) and the ANZ Bank in respect of the subject property. Thus, it was not an exercise of the accrued jurisdiction. See In the Marriage of Warby.

2. It would require very clear words to extinguish rights of the ANZ Bank for no apparent juridical reason. See Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337 at 355. The declaration did not seem to be in such clear terms so far at least as the ANZ Bank was concerned.

3. There were no consequential orders, which may be made under s 78(2) of the Family Law Act, and which would be required to remove the mortgage on the property. Without such orders, the indefeasibility of the Register of Titles would maintain the interest of the ANZ Bank in the property as mortgagee, as provided for in s 58 of the Land Titles Act 1925 (ACT). See Frazer v Walker [1967] 1 AC 569.

4. It is clear from the terms of the order as a whole, particularly what is noted at paragraph 4 of the order, that the intention of the Order is not, in this respect, to alter the interests of the parties. Paragraph 4 of the Order was in the following terms:

As a consequence of the orders I make hereunder, the parties are to retain proprietary ownership of the houses in which they presently reside, and, thereafter, the wife is to receive 57 per cent of the total remaining net assets of the parties and the husband is to receive 43 per cent of the total value of the remaining net assets of the parties.

5. It seems to me that the matrimonial property the subject of the proceedings and to which s 78 of the Family Law Act gave the Family Court power to make declarations was the interest that Mr Manny (or his former wife) had in the subject property; that was the interest subject to the interest of the ANZ Bank.

6. It also seems to me that, if there were to be alterations to property interests, these would have to be made under s 79 of the Family Law Act, in which case the Court would have to make an order under s 90AE of the Family Law Act, namely, an order binding a third party. In my view, the subject order was not an order under any of these provisions.

7. Finally, the history of the proceedings seems to support this. On 21 May 2010, Faulks DCJ made orders that required the ANZ Bank to notify the Registrar if it wished to be heard in relation to certain attached proposed orders. One of these was in the following terms:

Kazuko Manny ('the wife'), is declared to be the sole registered proprietor of the property situate and known as 58 Barnard Crescent, Florey, in the Australian Capital Territory ('the Barnard Crescent property').

Three points arise from this. In the first place, there was no similar order proposed in those orders in relation to the subject property at Flynn. Secondly, the orders actually made on 13 July 2010 omitted the word "sole", and thirdly the ANZ Bank appears to have sought to be heard as the orders of 13 July 2010 were in somewhat different terms.

55. Therefore, it would appear that there is no identifiable claim for contempt.

56. Notwithstanding that Mr Manny has, he now informed me on the day of the hearing of the appeal, commenced proceedings in the Family Court of Australia for the ANZ Bank to be dealt with for contempt over the proceedings in this Court, I did not consider that it was appropriate to vacate the hearing of the appeal.

57. As noted above, I am satisfied that the orders of the Family Court did not alter the property rights of the ANZ Bank. Further, the indefeasibility of the ANZ Bank's title as mortgagee remains unaffected by any proceedings in the Family Court, unless or until any relevant orders are made by that Court, if within power, to order the Registrar of Titles to alter the Register.

58. The second reason that I should vacate the hearing advanced by Mr Manny was the cross-vesting application. However, it does not seem to me that these proceedings could be cross-vested to the Family Court, since the only proceedings there are proceedings for contempt. Such a proceeding is, or appears to me to be, a criminal or, at the very least, a quasi-criminal proceeding: Witham v Holloway (1995) 183 CLR 525. That would appear to prevent cross-vesting as the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) does not apply to a criminal proceeding: Jurisdiction of Courts (Cross-Vesting) Act, s 3. That appears to include a quasi-criminal proceeding: CAO v HAT [2013] QCA 272. Despite the fact that the proceedings in the Family Court included other matters which were civil proceedings, it appears that the only pending proceeding (note the statutory use of the singular: Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145 at 152) is the contempt proceeding, to which, it would appear, these proceedings cannot be joined under that Act.

59. So far as the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) is concerned, it seems to me that there is no matter arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth in the claim and defence (I do not consider the Counterclaim, as it is not existent in such proceeding at this time given it was struck out by order 3 set out above (at [30])) and so there is no occasion for transfer under that Act.

60. Accordingly, there was no basis for the hearing of the appeal not to proceed and I heard it.

61. In Jin v Ai [2011] ACTSC 70 at [9], I said the following about appeals from the Master in respect of interlocutory orders:

I addressed the issue of appeals from the Master in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [65] to [87]). I formed the view that Hogan AJ was correct in Re Milosevic (1996) 134 FLR 429 when his Honour held that the approach to such appeals that had been adopted by Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 was applicable to such appeals. These principles were that:

(a) the appeal is one on fact as well as on law;

(b) the court on appeal may apply the law as it exists at the date of the appeal;

(c) where additional evidence is adduced, the appellate court may decide the appeal in the light of that evidence along with the evidence before the Master;

(d) if no additional evidence is adduced to warrant a departure from the Master's findings of fact, those findings are binding on the appeal court, unless they, or the inferences from them are so flawed as to attract intervention in accordance with the principles as enunciated in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531;

(e) where the Master's decision arises from the exercise of a discretion, the principles enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply.

62. The question of the admission of further evidence was addressed by me in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [85], where I said:

The admission of fresh evidence, is, as the court held in Re Milosevic, governed by s 9(3)(c) of the Supreme Court Act 1933 (ACT), though without the criteria applicable in appeals from the Magistrates Court as considered by Miles CJ in Campbell v Fortey (1987) 85 FLR 462. Such decisions now appear to be governed by the principles enunciated in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 and Allesch v Maunz.

63. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, the High Court considered a provision very similar to s 9(3)(c) of the Supreme Court Act. In the decision (at 200-4; [104]-[116]), McHugh, Gummow and Callinan JJ set out some principles that inform a court when faced with an application to adduce further evidence in such an appeal.

64. That the principles enunciated in that case apply can be seen from decisions of that Court of Appeal in Browne v The Queen [2006] ACTCA 15 at [8]- [14]; Hillier v The Queen (2008) 1 ACTLR 235 at 266-8; [159]-[165].

65. Those principles may be summarised as follows:

1. There is a discretion to receive further evidence (not "fresh evidence" or "new evidence"), which exists to serve the demands of justice.

2. The width and limits of the discretion is dependent on the construction of the statutory provision; that is, it is conferred on a court exercising appellate jurisdiction in the context of an appeal by way of rehearing.

3. Thus, the critical factor is the subject matter of the proceedings, that is, the purpose of the admission of the further evidence is to ensure that the proceedings do not miscarry. The discretion, therefore, is likely to be exercised in favour of the admission of the evidence where it is cogent and where, if accepted, it would demonstrate that the decision the subject of the appeal was in error.

4. Further evidence is not limited to evidence that challenges the decision under appeal; it can be used to support that decision.

5. That is to say, the principal purpose of the admission of further evidence is to give the Court a discretionary power to admit such evidence where that evidence, if accepted, would demonstrate whether the order under appeal is erroneous. Thus the discretion exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of conventional appellate procedures.

6. A further, but subsidiary, purpose of the discretion is to admit the further evidence to buttress the decision already made.

7. The discretion involves the weighing of relevant factors and is not to be approached as the common law required the admission of fresh evidence to be approached, that is, by the application of principles "bordering on fixed rules".

8. The statute gives an ample power, which is remedial in nature, which should be construed liberally and flexibly without implications or limitations, whether from the common law or otherwise, which are not in the statute.

9. The exercise of the discretion is not limited by a need to show "special grounds" or "special circumstances".

10. Nevertheless, the discretion is not unfettered and must be exercised having regard to the subject matter, scope and purpose of the appeal provisions.

11. Thus, the discretion must be exercised judicially, that is, consistent with proper judicial processes and the interests of justice.

12. Accordingly, any further evidence must and may only be admitted if it is admissible in accordance with the principles of the admissibility of evidence or by statute and if there is no reason to believe that it is not credible.

13. It is to be borne in mind that, in conferring the discretion, the statute should not be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdictions. Thus, the court must decide the rights of the parties at the time of the appeal.

14. The further evidence should not be admitted merely because it is "useful".

15. Further evidence will readily be admitted where it is not in dispute and where the court can readily evaluate it and take it into account without the necessity of having the proceedings reheard.

16. Further evidence may be admitted by consent and, where there is consent, it may be admitted without need for prior consideration of the effect it may have on the decision the subject of the appeal. Otherwise, it should only be admitted where it is likely to have an effect on the decision the subject of the appeal.

17. A failure to adduce evidence which is sought to be admitted as further evidence will be of variable relevance, depending on the case. Where the evidence was deliberately withheld, the failure to adduce it at trial will weigh heavily against its admission. In other circumstances, the fact that the further evidence could have been admitted by ordinary diligence may be of little significance. There is no invariable rule about this.

18. Factors that need to be weighed include the finality of litigation, and whether the evidence could have been obtained at trial. The weight given to these factors depends on the nature of the case.

66. Mr Manny did not apply for leave to adduce further evidence formally and it did not seem to me that, applying these principles, any material to which he referred would have been admissible by these tests.

67. The next issue was the appeal against order 1 of the Master set out above (at [30]).

Australia and New Zealand Banking Group Limited v Manny

At a glance

Court

Decision date

Before

Source

Judgment (290 paragraphs)

Australia and New Zealand Banking Group Limited v Manny (No 4) [2013] ACTSC 236 (2 December 2013)

Parties

Legislation Cited (18)

Cases Cited (36)