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

Court of Appeal (ACT)|2012-10-15|Before: Refshauge ACJ

1. The time within which the applicant, Jeff Manny, may file the application for leave to appeal from the orders of the Supreme Court made on 14 March 2012 and 20 April 2012 be, and hereby is, extended to 7 May 2012.

2. The application for leave to appeal from the orders of the Supreme Court made on 14 March 2012 and 20 April 2012 made by application in proceedings dated 7 May 2012 be dismissed.

3. The applicant, Jeff Manny, pay the costs of the respondent, Australia and New Zealand Banking Group Ltd, such costs to be payable on judgment or other termination of the Supreme Court proceedings between the applicant and the respondent being numbered SC 746 of 2011.

IN THE SUPREME COURT OF THE ) No. ACTCA 17 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

AND: AUSTRALIAN NEW ZEALAND BANKING GROUP LIMITED

1. There is no doubt that the law can be complex and the procedures of the Court are often unfamiliar to persons who have not studied law. As a result, the courts must take special steps with litigants who are not legally trained or qualified to ensure that their rights are respected as best as can be done without infringing on the rights of the litigants who are legally represented. As a unanimous High Court said in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It has been so in this case. It is necessary to focus on the material placed before Tadgell J and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time.

2. This is singularly apt here where Jeff Manny, the applicant, is not legally trained or qualified and makes submissions that often confuse rather than clarify whatever rights he may have. Nevertheless, the Court, without prejudice to the respondent, must do its best to ensure that any rights that Mr Manny may have are respected. In these proceedings, Mr Manny has named "Australian New Zealand Banking Group Limited" as the respondent, the correct name being Australia and New Zealand Banking Group Limited ACN 005 357 522. I will refer to the respondent in these reasons as "the bank".

3. It appears, though I make no finding, that Mr Manny and companies with which he was associated and perhaps controlled, entered into various accommodations with the bank. Mr Manny challenges some of these arrangements, but that is not a matter directly before me today.

4. In circumstances set out in the decision of Harper M, Manny v Sims [2011] ACTSC 58, receiver and managers were appointed by the bank in respect of certain properties of companies associated with Mr Manny and later administrators were appointed to those companies. That decision was made in response to an application by Mr Manny, and purportedly by certain other companies, to have the appointments set aside. That application was refused.

5. The bank has, in separate proceedings being those from which the present application for leave to appeal is made, sought to recover a debt said to be of $424 691.49 owing by Mr Manny, being $354 360.89 under one agreement and $70 330.60 under another agreement, and also possession of premises which appear to be Mr Manny's residence.

6. In the bank's proceedings, Mr Manny applied by Application in Proceedings dated 17 February 2012 for various orders. There were 14 orders sought, but when the application was heard by Burns J on 14 March 2012, Mr Manny agreed that what he wanted were the following orders:

(a) that the receivers and administrators be joined to the proceedings;

(d) in the alternative, that Mr Manny be given an extension of time within which to file his defence.

7. After hearing extensive argument in which Mr Manny ranged widely over a variety of issues, Burns J refused to make each of the first two orders on 14 March 2012 and, on the fourth, granted him 30 days within which to file his defence.

8. Mr Manny renewed his application for a stay and further argument was heard by Burns J on 20 April 2012, when his Honour also refused to make that order.

9. Mr Manny wishes to challenge those orders, presumably other than the fourth one, by appeal to this Court. The orders, however, are interlocutory: see Eatts v Dawson (1990) 21 FCR 166 at 169; Deputy Federal Commissioner of Taxation v Yosemite Afforestation Pty Ltd (1988) 88 ATC 4,505 at 4,509. Accordingly, by virtue of s 37E(4) of the Supreme Court Act 1933 (ACT), leave is required before Mr Manny may appeal against the decision. He has sought that leave in the application for leave to which I have referred (at [5]).

1. That the applicant be given leave to appeal against the judgment of *[Justice Burns] [sic] SC 746 of 2011 of the ACT Supreme Court given on 14 March and 20 April 2012.

2. The appellant will seek to put further evidence before the Court of Appeal.

3. The ACT Court of Appeal give [sic] extension of time to the appellant to file defence and counterclaim to the Originating Claim of ANZ bank SC 746 of 2011

*2. That the applicant be given leave to make this application even though this notice was filed less than 7 days after the judgment was given. I have already filed a Notice of appeal before 7 days from the judgment date but needed correction that is why I have filed this form a not later. [sic]

3. Any other orders that the Court of Appeal considers appropriate.

11. I do not, of course, need to deal with orders number 2 and 3 (second appearing). As to order numbered *2, no point was taken by the bank about the late filing of the application, as was proper for the bank, though it could have equally as properly objected. Given that Mr Manny is a litigant in person, latitude would ordinarily be given by the Court to such a person, especially as the concept of what is an interlocutory order is unlikely to be well known to such a person.

12. The application was, fact, filed less than 28 days after the later of the orders that Mr Manny has sought to challenge and which would, by r 5405(1)(B) of the Court Procedures Rules 2006 (ACT), apply to an appeal other than from an interlocutory order. I shall make an appropriate order under r 5312 which, as a single judge of the Court of Appeal, I may do under s 37J of the Supreme Court Act.

13. The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects ACT Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows:

(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

(b) a court will be particular hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;

(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of a grant of leave;

(d) the party seeking leave bears the onus of satisfying the Court of the necessary criteria to justify the grant of leave;

(e) the Court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;

(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is, "attended with difficulty and its correctness is open to dispute" (Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 400), and, if it is wrong, significant consequences will be suffered by the applicants; and

(g) it may be a factor favouring the grant of leave that:

(i) the decision involves a matter of public importance; or

(ii) the decision may affect the fairness of the trial for consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal in unfair delay or fragmentation of the trial.

These principles may be applied more liberally in the light of s 21 of the Human Rights Act which expresses the right to a fair trial, since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.

14. The first two orders sought were that the receivers and managers be joined as parties and that their appointment be set aside. These were orders 12, 13, 1 and 2 respectively in the Application in Proceedings filed by Mr Manny on 17 February 2012 and made initially returnable on 5 March 2012 (see above at [6]).

15. Mr Manny submitted that because the loan arrangements under which the receivers and managers had been appointed were also with the bank who was suing him in these proceedings, there was an interrelationship which justified joinder of the receivers and administrators. He said that, had the receivers and administrators not been appointed, and had they not taken control of funds otherwise available to him, then he would have had the funds with which to make the payments on the loan the subject of these proceedings, so that no default would have occurred and the bank would not have been entitled to commence these proceedings.

16. This was the relationship which he said entitled him to the joinder. This, he submitted, was supported by allegations that he had been misled at a hearing in separate proceedings commenced by the receivers against him when those proceedings were discontinued (see Sims v Manny (Unreported, Supreme Court of the ACT, Harper M, 25 February 2011). This, he says, undermines the bank's claim. Unfortunately, there was no evidence as to what was precisely in issue in that matter. It was all assertion from the Bar table and, in addition, in vague and general terms, such that the legal effect, if any, of his allegation was unable to be assessed.

17. Mr Manny also complained that the receivers and administrators had sold the property of his companies at an under-value that left him without the funds needed to meet the bank's claim. He also complained that the administration of the properties by the receivers and the administrators had been negligent or at least inadequate and that this had caused loss and damage which he could recover from them. Mr Manny made a number of other submissions but none seemed to me to be legally relevant to the issue of joinder.

18. Apart from the fact that the bank was the same lender to Mr Manny for his home and to his companies, none of these matters were directly relevant to the present Supreme Court proceedings. The only relevance was that if Mr Manny was entitled to gain control of his companies or recover damages from the bank, the receivers or the administrators, he could repay the bank and end the proceedings for possession of his home. He made the point, no doubt right but legally of no effect, that if he was dispossessed of his home it would be more difficult for him to conduct the proceedings. Indeed, there seemed to be a number of proceedings in this Court and in the Supreme Court in which he was involved. All would be, he said, prejudiced in the same way. This may be so, though there was no evidence to show that he had no other options. In any event, it was not, at law, a valid reason in support of the application.

19. The bank opposed the application. Mr A Casselden, who appeared for the bank, pointed out that the issue of the validity of the appointment of the receivers and administrators had already been decided by the Master in Manny v Sims, so there was no basis that this could be re-litigated in these proceedings. The proceedings were, he submitted, misconceived.

20. The learned trial judge expressed dissatisfaction that the proceedings were misconceived. His Honour acknowledged that Mr Manny was not legally represented and observed that he had given Mr Manny considerable latitude in the submissions made. He pointed out that any complaint about the validity of the appointment of the receivers or administrators could only be resolved through appeal if appropriate leave were granted from the decision of the Master or otherwise by the reopening of those proceedings, and that he could not re-litigate the issue through these current proceedings.

21. As to the other claims about the conduct of the receivers and managers, his Honour held that Mr Manny needed to take separate proceedings against them and not try to join those proceedings to those proceedings.

22. The hearing on 14 March 2012 did not deal with the application for a stay or dismissal of the proceedings. It is not entirely clear why. In any event, by the time that issue was agitated before Burns J on 20 April 2012, Mr Manny had been granted leave to appeal against the decision of the Master on that day by the Chief Justice. I had no documents before me and there was some uncertainty about the nature of that decision. In any event, Mr Manny was, to that extent, in a somewhat different position than he had been earlier before Burns J.

Submissions in relation to the application for a stay

23. In the hearing on 20 April 2012, Mr Manny relied on what he described as a "thorough examination" by Higgins CJ of his case when considering leave to appeal from the decision of the Master and in which he said his Honour had found "a case of misleading." No transcript of what his Honour said was tendered or, indeed, available.

24. Mr Casselden submitted that, as he understood it, his Honour the Chief Justice had said that he would not comment on the merits of Mr Manny's appeal other than to make a finding that there was an arguable case. It would be, at least, unusual, perhaps inappropriate, to make such findings as Mr Manny alleges were made about the actual merits of a case when considering leave to appeal on such an application.

25. The learned primary judge noted that his Honour's associate was acting as an associate for the Chief Justice when Mr Manny's application was heard and said that he had confirmed that Mr Casselden's understanding was correct. I will make no comment on whether that was an appropriate way to have resolved the factual dispute as to what was said before the Chief Justice.

26. What Mr Manny submitted was that his appeal was likely to be successful and he made a number of assertions about his case. He submitted that his circumstances had now changed because once the appointments of the receivers and managers were set aside, as he confidently asserted they would be, he was "going to get a lot of lump sum of my money, at least some of money, to be released". That would mean that the instalment payment which he had defaulted in making would then be available. He did not, however, say how he would obtain the subsequent instalments that had also been made. In any event, as Mr Casselden pointed out, the default meant that the full balance was now due.

27. It was this change of circumstance on which Mr Manny relied which, he submitted, was a probability that he would get his money. He submitted that the Court should, therefore, allow him to prosecute the appeal for which leave had been granted and, if he were successful, he would have the funds to pay the bank's claim; thus the present proceedings should be stayed. Again, he said it would be impossible for him to litigate if he were dispossessed for, he said, "it is impossible for me to litigate from the street to win this case."

29. The learned primary judge rejected the application. He said that nothing had been submitted by Mr Manny would justify the setting aside of the proceedings. Indeed, there were, in fact, no submissions I could find directed to such an order.

30. As to the stay, his Honour noted the possibility that Mr Manny had submitted he had of obtaining funds through the Court of Appeal decision, but noted that the evidence did not really show how this would be achieved. His Honour held that there was no sufficient connection with the proceedings that were to go before the Court of Appeal and those with which his Honour was concerned such as to justify a stay. He rejected the application.

31. Mr Manny has, as noted above (at [10]), sought leave to appeal from both these decisions of the learned primary judge. Mr Manny made, substantially, the same submissions to me that he had made in the Supreme Court. I do not need to repeat them. The bank opposed leave being granted.

32. There is no doubt that the application for joinder was misconceived. A defendant, as Mr Manny is, does not need leave to join parties where there is a relevant connection with the proceedings. Thus, a defendant may, under r 462 of the Court Procedures Rules, make a counterclaim against a person not already a party to the proceedings if the counterclaim alleges a claim for which the person is liable with the plaintiff or the relief is relating to or connected with the original subject matter, the proceedings. No leave was required to make such a counterclaim which is to be made with the defendant's defence.

33. Similarly, if a defendant wants to claim a contribution or indemnity from a person not already a party to the proceedings or to claim relief from such a person when the relief is related to or connected with the original subject matter to the proceedings and is substantially the same as the relief claimed by the plaintiff, or if the defendant wants to require an issue relating to or connected with the original subject matter of the plaintiff's claim to be decided also as between the plaintiff, defendant and the other person, the defendant may issue a third party notice under r 302 of the Court Procedures Rules without leave and thereby make the other person a party.

34. Mr Manny has done neither. That would have the effect of requiring him to plead properly a maintainable claim against that other party and to show that, in the circumstances, there was a sufficient connection as required by the Rules. Mere similarity is insufficient: Myers v N & J Sherick Ltd [1974] 1 All ER 81 at 85. As Smithers J said in Pioneer Concrete (NT) Pty Ltd v Watkins Pty Ltd (1983) 66 FLR 279 at 289-90, quoting Re Burford [1932] 2 Ch 122 at 140-1 per Lawrence LJ, "[t]he words 'substantially the same' should, I think, be interpreted as 'the same in substance although not in form'". It may be that, as Mr Manny is unrepresented, these possibilities should have been drawn to his attention.

35. That, however, does not entitle Mr Manny leave to appeal because, as a matter of law, the claims that he has articulated and wants to litigate could not, in fact, be the subject of either a counterclaim or a third party notice. Although Mr Manny has not been able to formulate his claims in a way that discloses whether he has a cause of action or not, the validity of the appointment of the receivers and administrators are so unlikely to meet the tests set out in rr 462 and 302 that they could almost certainly not be the subject of either a counterclaim or third party notice.

36. A more fundamental problem, however, is that they are the subject of other proceedings. The decision of the Master renders them res judicata unless set aside. That prevents Mr Manny from re-litigating that issue in the proceedings below. If the appeal proceedings for which leave was granted by the Chief Justice proceed and set aside the order of the Master, then to raise the issues that are then alive in the those proceedings would be in an abuse of process as Mason J held in Moore v Inglis (1976) 9 ALR 509 at 515.

Conclusion in relation to the application for joinder

37. There is, accordingly, no basis on which Mr Manny should be permitted to appeal against the decision made by the Supreme Court on 14 March 2012, as any claim that he would wish to make against the receivers and managers or the administrators as currently articulated could not be so brought.

38. As to the stay, Mr Manny was unable to point to any error in his Honour's decision. That would ordinarily be sufficient to dispose of the application, as submitted by Mr Casselden. Nevertheless, as Mr Manny is unrepresented, it is desirable that I should at least consider the matter carefully to ensure that, because he is not represented, Mr Manny is not denied any right to which he may be entitled even though his lack of experience and knowledge renders him incapable of articulating it.

39. There is no doubt that the Supreme Court has power to stay its proceedings. So much was made clear by the New South Wales Court of Appeal in Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344. Such a stay, however, should be sparingly granted. In Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19, Sugerman ACJ, with whom Holmes and Mason JJA agreed, referred to "the fundamental principle that a plaintiff is entitled to have his [sic] action tried in the ordinary course of the procedure and business of the court". His Honour then considered a number of authorities on the question of the "exercise of judicial discretion on proper grounds as part of the court's inherent powers" to which that fundamental principle was subject. His Honour concluded from the consideration that it "demonstrate[d] the gravity of an exercise of this power and the necessity for the existence of proper grounds for its exercise."

40. It is worth noting that the proceedings in that case which were sought to be stayed were defamation proceedings which, it was suggested, should not proceed while there were pending criminal proceedings about which the subject matter of the defamation proceedings was a report published by the defendant. The Court of Appeal refused the stay.

41. It is clear that the applicant must make out the grounds for such a stay: Caesar v Sommer [1980] 2 NSWLR 929 at 933. Here, the emphatic belief of Mr Manny that he will be successful in the other proceedings is not a sufficient basis on which to interfere with the plaintiff bank's rights. As to the pressure on Mr Manny with concurrent litigation, that can be moderated. His rather dramatic reference to "being on the street" is not part of reality at this stage. The bank's proceedings have not advanced very far. Indeed, Mr Manny still has to file a defence, which will require further preparation of the matter for trial, though there may be interlocutory applications that the bank may take to promote early disposition of the proceedings.

42. In any event, even were the bank to obtain judgment, by which time it would appear that the other proceedings will, at least, by either reinstated and well advanced or terminated, Mr Manny can seek a stay of execution if he can show that he has realistic prospects of obtaining the necessary funds to pay out the bank.

43. There is no basis on which Mr Manny should be permitted to appeal against the decision of the Supreme Court made on 20 April 2012.

44. As his application has been dismissed, Mr Manny should pay the costs of the application. Given the circumstances and the nature of the respondent bank's claim in the proceedings below, however, I consider that such costs should not be payable until the entry of judgment or other termination of the proceedings below.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Bradley Allen Love as agent for Gadens Lawyers

Procedures Rules 2006

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