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[2025] ACTSC 151
General information, not legal advice.
Supreme Court of the ACT
2025-04-15
McWilliam J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Manny v ACT Citation: [2025] ACTSC 151 Hearing Date: 13 March 2024 Decision Date: 15 April 2025 Before: McWilliam J Decision: In each of the four proceedings, the pleadings are struck out with leave granted to replead on conditions. Catchwords: PRACTICE & PROCEDURE – STRIKE-OUT – whether proceedings disclose reasonable cause of action – leave granted to replead on conditions Legislation Cited: Australian Human Rights Commission Act 1986 (Cth) Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 50, 405, 406, 407, 425(1), Dictionary Criminal Code 2002 (ACT) Fair Trading Act 1992 (ACT) Housing Act 1985 (ACT) Human Rights Act 2004 (ACT) Racial Discrimination Act 1975 (Cth) Cases Cited: Aldous v State of New South Wales [2018] NSWCA 261 Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 Jae Kyong Lee v Bob Chae-Sang Cha [2008] NSWCA 13 Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 Manny v Australian Postal Corporation [2025] ACTSC 148 Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146 Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12 Manny v Shiels [2022] ACTCA 22 McColley v Commonwealth of Australia [2014] ACTCA 21 Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 P and W v Manny and Anor [2010] ACTSC 50 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 The Owners – Units Plan No 1917 v Koundouris & Anor [2014] ACTSC 269 Parties: Jeff Manny (Plaintiff) Australian Capital Territory (Defendant) Representation: Counsel Self-represented (Plaintiff) D Crowe (Defendant) Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) File Numbers: SC 500 of 2022, SC 64 of 2023, SC 82 of 2023, SC 96 of 2023 McWILLIAM J:
Mr Manny (the plaintiff) has commenced 14 separate proceedings against the Commonwealth of Australia (Commonwealth), the Australian Capital Territory (Territory), the University of Canberra and the Australia Postal Corporation. In each case, relief of many millions of dollars is sought in damages or compensation.
This judgment deals only with the proceedings involving the Territory as defendant, being the following proceedings: (a) SC 500 of 2022, commenced by originating claim and statement of claim filed 19 December 2023 (Dental Treatment Claim); (b) SC 64 of 2023 commenced by originating claim and statement of claim filed 10 February 2023 (Parking Infringement Claim); and (c) SC 96 of 2023 commenced by originating claim and statement of claim filed 27 February 2023 (Housing Claim). (d) SC 82 of 2023 commenced against the Territory (following substitution) by a Further Amended Originating Claim filed 13 December 2023 (Walking Tracks Claim).
Applications for determination
The Territory has filed an application in each proceeding seeking that the operative pleadings in the proceeding be struck out, but that leave be granted to replead on certain conditions, pursuant to r 425(1) of the Court Procedures Rules 2006 (ACT) (Rules).
For reasons that follow, the orders sought in each application will be made.
Facts pleaded in each dispute
Dental Treatment Claim
The plaintiff’s complaints relate to conduct by ACT Health in 2018 and 2019. The causes of action he has articulated are in medical negligence and the further tort of negligent infliction of pure economic loss.
He asserts that root canal therapy was undertaken in 2018. The treatment was performed following a dental assessment carried out by ACT Dental.
The conduct apparently constituting the breach of a duty of care owed by the treating dental practitioner was that the root canal therapy was done “in haste” and the filling material was wrong. It is alleged that this caused: (a) An infection in the filled tooth, which then spread to the teeth on the plaintiff’s right jaw. (b) The infection also spread to the ears of the plaintiff, resulting in a 40% hearing loss.
It is further alleged that the particular dentist who performed the root canal treatment was “against the plaintiff and he did not like whistle blowers”. The plaintiff referred to a judgment in earlier court proceedings, P and W v Manny and Anor [2010] ACTSC 50 (P and W) which was available “on Google”.
The plaintiff further pleads that he was advised to seek a private remedy, and that the scope of the damage was beyond that which could be performed by ACT Health.
The plaintiff then alleges that in 2019, the plaintiff’s infection had spread to six teeth. An orthodontist quoted him $20,000 to treat the plaintiff’s damaged teeth.
The plaintiff did not have the money for that surgery and accordingly has not had that fixed.
The plaintiff also refers to a medical certificate provided by a dentist at Weetangera Family Dental Care in February 2021, confirming that he was required to undertake invasive dental treatment and due to the significance of the required intervention, the medication and the degree of pain experienced in the ongoing management of the infection, the plaintiff was unable to attend to work or study for a period of two weeks over February and March 2021.
The plaintiff included an allegation of apprehended bias.
Other allegations were made in the pleading about conduct which involved non-parties to the proceeding. They included: (a) An allegation that the orders made in P and W were a miscarriage of justice, an argument that was dealt with in Manny v Shiels [2022] ACTCA 22 at [13]-[19]. (b) An allegation that the plaintiff lost an asset portfolio due to the negligence of “DLL”, which I understand to be a reference to litigation against David Lardner Lawyers: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289, affirmed on appeal in Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12.
The plaintiff sought $8 million in compensation, plus interest.
Parking Infringement Claim
In this claim, the plaintiff complains about a parking infringement notice issued to him on 8 August 2022, while he says he was parked in Belconnen. He did not have a valid parking ticket.
The plaintiff alleges that he did not pay for the parking ticket due to a parking machine being faulty. He applied to Access Canberra on 13 September 2022 for a withdrawal of the notice on the basis that the ticket machine in the vicinity was faulty and the plaintiff was unable to pay for a ticket.
He then alleges that Access Canberra refused to withdraw the notice and further notified him of another outstanding infringement notice dated 30 July 2022, which he alleges was never placed on his car. It is alleged the plaintiff had no knowledge of the further infringement notice.
The plaintiff contends that the above response by Access Canberra is yet another act of apprehended bias, discrimination and breach of statutory duty and duty of care, a flow on effect from the prejudicial judgment made against him in P and W.
Similar allegations to those discussed above in relation to the Dental Treatment Claim are made against non-parties to the proceeding, being the negligence of DLL and apprehended bias of those performing the duties of the ACT Police (being the Australian Federal Police).
A separate allegation is made against a different non-party, in relation to airport security searching the plaintiff at Canberra Airport and Sydney Airport.
He seeks $8 million on the basis of a breach of statutory duty and breach of duty of care.
Housing Claim
By this claim, the plaintiff seeks: (a) The sum of $9 million (plus interest) in damages for personal injury, pure economic loss and pain and suffering; (b) Compensation in the sum of $250 million payable by the ACT Government; and (c) That the orders of Gray J dated 11 June 2010, as set out in P and W be set aside.
The plaintiff alleges that he applied for social housing by submitting a form to ACT Housing in August 2013. This followed the making of a court order around that time, allowing repossession of his home. The contents of his application is set out in the statement of claim.
There is no pleading as to what happened after he applied for social housing.
Instead, the claim proceeds to deal with allegations made in separate proceedings, being the Walking Tracks Claim, the negligence of DLL and a claim involving the theft of his bicycle, which is dealt with in Manny v Commonwealth (No 2) [2025] ACTSC 146 (Manny 2025) at [12], [60]-[66].
Walking Tracks Claim
This claim alleges a failure to maintain the walking and riding tracks around the Ginninderra Lake. It is alleged the tracks are highly dangerous to users.
The claim alleges that in 2004 he warned the ACT Chief Minister about the dangerous nature of the Ginninderra Lake walking and riding track (walking track). It is alleged the ACT Chief Minister told the plaintiff that he was going to report the plaintiff to the police.
The claim then alleges that a series of attacks occurred: (a) On 10 December 2023 (although this could be a typographical error, as the plaintiff subsequently refers to this incident occurring on 10 December 2022), the plaintiff was attacked and assaulted on the walking track. The plaintiff notified the police but the police did nothing. (b) On 6 December 2023, the plaintiff was walking when a man from an address in Florey attacked him and assaulted him, causing a sprain of the plaintiff’s left wrist and an injury to his back. The plaintiff reported the incident to the police the next day. No one called him to follow up that investigation. (c) On 13 February 2023, the plaintiff was riding his bike at 5pm around the walking tracks of Lak Ginninderra (behind the back of Hungry Jacks) when a pedestrian jumped in front of him. The plaintiff moved to avoid the pedestrian, but in doing so fell on sharp concrete tiles sticking out of the ground by 3 or more inches. The fall caused 6 fractured ribs, a torn ligament on the plaintiff’s right shoulder, requiring surgery, damage to the plaintiff’s lungs which required extensive medication, and bruises on his body. He was taken to Canberra Hospital by an ambulance in a semi-conscious state.
The plaintiff claims that this is a pattern of conduct engaged in by the ACT Government.
The claim makes similar allegations against non-parties to the proceeding as in the other proceedings discussed above.
The claim pleads the following: Breaches: Apprehended bias to the plaintiff; breaches of duty of care; foreseeability; reasonability; causation and remoteness resulted in substantial pure economic loss and pain and suffering to plaintiff [in] Contravention of law and duties by the defendant.
The claim goes on to repeat allegations made in proceedings SC 492 of 2022, SC 146 of 2023 and SC 263 of 2023, which are the subject of a separate judgment (Manny 2025) and seeks the following relief: (a) $9 million in pure economic loss; (b) $4 million in compensation for causing the plaintiff’s “severe physical and mental disabilities” and “pain and suffering”; and (c) That the orders of Gray J dated 11 June 2010, as set out in P and W be set aside.
Applicable Principles
Rule r 425(1) of the Rules is in the following terms: 425 Pleadings – striking out (1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading— (a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or (b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; or (c) is frivolous, scandalous, unnecessary or vexatious; or (d) is otherwise an abuse of the process of the court. ...
The Territory relies in particular on all paragraphs of the above rule. They form the issues on the application. I will deal with them in turn.
Is a reasonable cause of action disclosed?
The material issue is whether a reasonable cause of action is disclosed on the pleadings and if not, whether the plaintiff should be given leave to replead the cause of action identified.
In Manny 2023, I discussed the Court’s approach to the assessment of whether a claim discloses a reasonable cause of action, including the procedural requirements for pleading the action at [61]-[72]. What follows below is drawn from those reasons in large part and set out below for convenience of reading within the one judgment, noting that the Territory was not a party to the matters that were the subject of that litigation. The Court’s task or approach
As stated in Manny v Australian Postal Corporation [2025] ACTSC 148 at [41]: The purpose of a pleading is to expose the case the party intends to run. Properly exposing the case to be pursued has been described as falling within a party’s obligations under s 5A of the Court Procedures Act 2004 (ACT) (CP Act): Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 at [17]. It is not for a defendant to guess at how a case is put against them, nor to guess at what facts are relied upon in support of a particular case. Those matters should be obvious from the pleading.
Whether a statement of claim discloses a reasonable cause of action is a question of law: McColley v Commonwealth of Australia [2014] ACTCA 21 (McColley) at [29]. The Court looks solely at what is pleaded and assesses whether it fails to include all the elements of a cause of action: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 (Spencer) at [22] per French CJ and Gummow J. Their Honours went on (at [23]) to note the distinction between evidence disclosing that a party has a reasonable cause of action, and a pleading disclosing a reasonable cause of action. Where the application is for strike-out in respect of a pleading, the issue is whether there is a defect in the pleading, and if so, whether such defect can be cured. If it can be cured, then the appropriate course is usually to strike out the pleading and give an opportunity to replead the claim: see The Owners – Units Plan No 1917 v Koundouris & Anor [2014] ACTSC 269 at [40].
The Court of Appeal in McColley discussed the approach to be taken to a strike out application that alleges that a pleading discloses “no reasonable cause of action or defence” at [31]-[34]. The relevant principles were described as being conveniently set out by Jagot J in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132, with the Court of Appeal stating at [31]: …The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true: West v New South Wales [2007] ACTSC 43 (West) at [9]. There is a “very high threshold”: Financial Integrity Group Pty Ltd v Farmer [2009] ACTSC 143 at [12]. There is a need for “exceptional caution” when deciding whether to order that a claim be struck out: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. A cause of action is “unreasonable” only if it is “bound to fail”: Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686.
The procedure required to disclose a reasonable cause of action under the Rules
The starting point is the originating claim, which must “state briefly and specifically the nature of the claim made and relief sought”: r 50 of the Rules. The statement of claim is the “pleading” of the case (it is one of documents listed in the Dictionary to the Rules as being a pleading).
Again, the purpose of a pleading is to expose the case the party intends to run: Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 at [17].
In aid of that objective, a pleading has formal requirements under the Rules (rr 405-407). Of relevance to the pleading here are the following: (a) The pleading must be in writing. (b) Each matter (or allegation) must be in a separate paragraph. (c) The paragraphs need to be numbered consecutively. (d) If the plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately. (e) A breach of statutory duty must be specifically pleaded (that means, the pleading must set out the provision of the statute in question and the duty under it). (f) Negligence must be specifically pleaded.
The pleadings under consideration here
Each of the pleadings refers to legislation relied upon by the plaintiff in a list, without any more specific reference to what facts are said to found any cause of action arising under the legislation cited. References are made across the pleadings to the following: (a) Fair Trading Act 1992 (ACT); (b) Racial Discrimination Act 1975 (Cth); (c) Human Rights Act 2004 (ACT); (d) Australian Human Rights Commission Act 1986 (Cth); (e) Housing Act 1985 (ACT); (f) Civil Law (Wrongs) Act 2002 (ACT); and (g) Criminal Code 2002 (ACT). 48 ․ In Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235, Bell P (with whom Emmett AJA agreed) referred at [39] to the latitude that may be afforded to a litigant in person and the power of the court to waive requirements of a procedural rule in an appropriate case. However, the President went on to state in the same paragraph: …it is important to keep in mind the remarks of Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18]: “In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. ... Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of court. ... The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights ... Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which may apply to any step which he is about to take.”
As submitted by the Territory, each of the pleadings here offends the following: (a) The requirement to state briefly and specifically the nature of the claim made; (b) The requirement that the plaintiff expose the case he intends to run against the Territory; (c) The formal requirements of rr 405-407 discussed at [45] above; (d) The requirement in any pleading of negligence or breach of statutory duty to state the facts and circumstances of the negligent act or omission, or breach of statutory duty: r 432 of the Rules; and (e) To the extent that a breach of the plaintiff’s human rights is propounded against the Territory, the requirement to state the human right that applies and the facts on which the plaintiff relies to assert that the Human Rights Act applies to the proceeding.
In respect of claims made for personal injury arising from medical negligence, there is also a Practice Direction that when a plaintiff serves their claim, they will also serve a document setting out the specialisation of each medical expert or the area of specialised knowledge of any other expert from whom the plaintiff proposes to obtain an expert report, as well as a report of an expert that supports the plaintiff’s alleged breach of duty: see paragraph 5 of Practice Direction 2 of 2014 (amended in September 2024).
Costs
The defendant has been successful on each of its applications and as a result, the usual order that costs follow the event should be made. However, as these proceedings are continuing, any recovery under an order for costs in each proceeding should await the conclusion of the litigation. Orders
For the above reasons, the Court makes the following orders: In proceeding no SC 500 of 2022: (1) Subparagraphs 4.1.i-ix of the originating claim are struck out. (2) The statement of claim filed 19 November 2023 is struck out. (3) Leave is granted to the plaintiff to file an amended originating and an amended statement of claim limited to pleading, but only in the latter, any or all of the following causes of action: (i) Any statutory cause of action, on the condition that the statute in question is named, the provision giving rise to the statutory action specified and the conduct said to constitute any breach of the named statute separately set out. (ii) Any action in negligence. (4) The leave envisaged by order 3 above is conditional on the plaintiff serving together with any amended statement of claim an expert report in accordance with paragraph 5 of Practice Direction 2 of 2014 (amended in September 2024). (5) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding. (6) The proceeding is listed for further directions on Monday 26 May 2025 at 11.30am. In proceeding no SC 64 of 2023: (1) Paragraphs 2-4 of the originating claim are struck out. (2) The statement of claim filed 10 February 2023 is struck out. (3) Leave is granted to the plaintiff to file an amended originating and an amended statement of claim limited to pleading, but only in the latter, any or all of the following causes of action: (i) Any statutory cause of action, on the condition that the statute in question is named, the provision giving rise to the statutory action specified and the conduct said to constitute any breach of the named statute separately set out. (ii) Any action in negligence. (4) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding. (5) The proceeding is listed for further directions on Monday 26 May 2025 at 11.30am. In proceeding no SC 96 of 2023: (1) Paragraphs 4.a.i.-ix. of the originating claim are struck out. (2) The statement of claim filed 27 February 2023 is struck out. (3) Leave is granted to the plaintiff to file an amended originating and an amended statement of claim limited to pleading, but only in the latter, any or all of the following causes of action: (i) Any statutory cause of action, on the condition that the statute in question is named, the provision giving rise to the statutory action specified and the conduct said to constitute any breach of the named statute separately set out. (ii) Any action in negligence. (4) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding. (5) The proceeding is listed for further directions on Monday 26 May 2025 at 11.30am. In proceeding no SC 82 of 2023: (1) Subparagraph 4.a and paragraphs 5-23 of the further amended originating claim are struck out. (2) The further amended statement of claim filed 13 December 2023 is struck out. (3) Leave is granted to the plaintiff to file an amended originating and an amended statement of claim limited to pleading, but only in the latter, any or all of the following causes of action: (i) Any statutory cause of action, on the condition that the statute in question is named, the provision giving rise to the statutory action specified and the conduct said to constitute any breach of the named statute separately set out. (ii) Any action in negligence. (4) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding. (5) The proceeding is listed for further directions on Monday 26 May 2025 at 11.30am.
I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date:
Manny
ACT [2025] ACTSC 151
(1964) 112 CLR 125
(2005) 214 ALR 686
Before a claim may be struck out (as opposed to a pleading), it must be shown to be defective in substance and not merely in the manner in which it has been stated, and it must be clearly untenable: McColley at [34].
Importantly here, and continuing the distinction made in Spencer, the question of whether a plaintiff has a reasonable cause of action is one of substance; the question whether it has been disclosed is one of procedure. Because the process of pleading one’s case is a procedural step, the Court has an obligation to take appropriate steps to ensure that self-represented litigants have sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial: Jae Kyong Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48], cited in Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [54] and more recently in Aldous v State of New South Wales [2018] NSWCA 261 at [63]. The detailed explanation of matters of procedure under the Rules has been undertaken with that obligation in mind.
Here, the extent of the non-compliance with the above Rules is so great in each pleading that the entire pleading must be struck out.
Otherwise, insofar as the pleading refers to any claim made in respect of the Racial Discrimination Act, none of the matters that form the subject of the litigation against the Territory have been the subject of any complaint to the Australian Human Rights Commission. The poses fatal jurisdictional hurdles for the plaintiff, which are set out in Manny 2025 at [69]-[70]. Those difficulties apply equally to the claims against the Territory here.
Further, where the pleadings include repeated claims made against third parties, these must be put to one side as they have no bearing on the proceeding against the Territory. Any further claim dealing with the litigation in P and W has been held to be an abuse of process: see Manny 2025 at [44]-[51]. That includes allegations of criminal conduct and fraud made against the Police.
However, the Territory fairly accepted that in each of the proceedings there was an arguable cause of action that may involve a statutory cause of action or a claim in negligence, even if it was not reasonably disclosed in the current version of the pleading relevant to the respective proceeding. I agree with that view taken of the pleadings and will make orders that have conditions crafted to ensuring that the plaintiff avoids simply repeating allegations that have been held to be unarguable or otherwise an abuse of process.