Manny v Commonwealth of Australia [2025] ACTSC 335

1. Mr Manny (the plaintiff) has commenced and had determined not less than 15 separate proceedings in this Court. Of those, nine have involved the Commonwealth of Australia (the Commonwealth).

2. The originating claim and statement of claim in each of the following seven separate proceedings were struck out, as an abuse of process, by McWilliam J on 14 April 2025: (a) SC 492 of 2022; (b) SC 146 of 2023; (c) SC 262 of 2023; (d) SC 19 of 2024; (e) SC 20 of 2024; (f) SC 21 of 2024; and (g) SC 263 of 2023.

3. Her Honour’s reasons for doing so are set out in Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146 (Manny (No 2)). At [77] McWilliam J stated: On the pleaded facts, the plaintiff is a person who has faced a series of unfortunate events during his lifetime. His financial position, his family circumstances and his health have all been dramatically affected by those events. To the extent that there were causes of action available to him, they have been litigated and determined. Recalling what was stated in Walton, the court exists to administer justice with fairness and impartiality. In matters of civil litigation, the court’s primary function is to apply the law to resolve disputes and part of that includes using best endeavours to ensure that those who do not have the resources of a lawyer are nevertheless able to access justice. However, the court is not able to remedy every bad thing that happens to a person in life. On the facts raised by the plaintiff in his various iterations of pleading, to permit any form of claim to go forward against the Commonwealth would not be fair for the reasons explained above. It would convert the court into an instrument of injustice, and I therefore conclude that the consolidated proceeding and proceeding SC 263 of 2023 are each an abuse of process. Proceeding SC 53 of 2023

4. The plaintiff commenced this proceeding with the filing of an originating claim and statement of claim on 31 January 2023. The originating claim and statement of claim was last amended, with leave, and filed in court on 18 October 2023.

5. By his amended originating claim and statement of claim the plaintiff seeks compensation from the defendant in the sum of $27 million plus interest. The damages sum is asserted to comprise $25 million for pure economic loss and $2 million for pain and suffering. Although there is some further particularisation of the pure economic loss component of the claim, including reference to a total damages sum of $250 million, with damages calculated by multiplying that amount by 5% per annum, the methodology for calculating the damages claim is difficult to follow.

6. The proceeding comprises many allegations, but the primary focus is on the Commonwealth’s management of airport operations, including the use of facial recognition technology, since 2004.

7. As I have noted above, proceeding SC 263 of 2023, that involved allegations against the Department of Home Affairs, was one of the seven proceedings struck out by McWilliam J. The amended statement of claim in that matter was before me on the defendant’s application. A comparison of that document with the amended originating claim and statement of claim in this proceeding demonstrates very significant overlap, to which I shall return later.

8. As counsel for the defendant described it, the gist of the complaint in the proceeding before me appears to be that the plaintiff was, as a consequence of his attendances at various airports in Australia, blacklisted by the Commonwealth, resulting in significant loss and damage for the plaintiff and for the various companies that he previously operated. In addition to the airport security concerns, the plaintiff’s pleading seeks to address, in the broadest sense, dissatisfaction with the outcome in a number of prior court proceedings and, more particularly, dissatisfaction with the conduct of ACT housing and the Australian Federal Police in their interactions with the plaintiff in a number of specified circumstances.

9. In response to the plaintiff’s originating claim and statement of claim the Commonwealth filed a conditional notice of intention to respond on the basis of its intention to assert an irregularity in the proceeding.

The applications

10. The Commonwealth lodged its application in proceeding on 16 January 2024. The delay in hearing of the application was primarily due to the consolidation and listing of the other seven Commonwealth proceedings, which were heard on 13 March 2024 and 4 April 2025, with a decision date of 14 April 2025. At [8] of Manny (No 2), McWilliam J stated: In respect of proceeding SC 492 of 2022, the plaintiff subsequently requested that he be permitted to rely on updating evidence filed on 31 March 2025. That was not opposed, and an order was made granting leave to reopen and to rely on further evidence at a brief hearing on 4 April 2025. The plaintiff has also filed updating submissions on 13 March 2025, which correct some aspects of his previous pleading and arguments. No formal order was made permitting reliance on those submissions. However, given the reopening and the fact that their content relates to the matters before the Court for consideration, it is clear that the plaintiff expected the Court to take those further submissions into account and I have done so.

11. The Commonwealth’s application in this proceeding seeks an order, pursuant to r 40(1)(e) of the Court Procedures Rules 2006 (ACT) (CPR), that the amended originating claim and statement of claim filed on 18 October 2023 be set aside. In the alternative, an order is sought pursuant to r 40(1)(g) of the CPR that the proceeding be stayed until further order of the Court. The grounds of the application set out within it were fundamentally directed to the Commonwealth, by its Department, not being a proper defendant to the plaintiff’s claim as the matters complained of in respect of airport security, public housing, and AFP activity in the ACT were not matters for which the named Commonwealth department was responsible.

12. In support of its application the Commonwealth relied on a schedule of correspondence comprising two letters from the solicitor acting for the Commonwealth to the plaintiff, dated 11 December 2023 and 17 January 2024. Each of those letters sought to clarify and confirm the nature of the claim pressed by the plaintiff and to suggest to him that the Commonwealth, via the Department of Infrastructure, regulated the aviation industry, but was not responsible for matters relating to airport security or matters of national security in the context of airport operations. The correspondence proposed the withdrawal of the proceedings and, if considered appropriate, the filing and service of alternate proceedings against parties properly responsible for airport operations.

13. In the Commonwealth’s outline of submissions and in oral submissions before me, the basis for the Commonwealth’s application shifted from the one described previously. The position of the Commonwealth as articulated at the hearing of the application was that the subject proceeding amounted to an abuse of process on the basis that it sought to ventilate matters already dealt with in other proceedings, in particular, in the consolidated proceeding before McWilliam J. It was asserted that the nature of the claim made in these proceedings overlapped significantly or completely with matters that were previously before her Honour in the consolidated proceedings. Matters that had not only already been dealt with by her Honour but were the subject of appeal proceedings.

14. The plaintiff’s application was lodged on 3 June 2025. That application sought, inter alia, summary dismissal of the defendant’s application in proceeding and summary judgment on the plaintiff’s claim. In support of his application the plaintiff relied upon his own affidavit affirmed on 3 June 2025 which set out in part the history of this and the related matters.

15. The plaintiff confirmed at paragraph (iv) on page 5 of his affidavit that he had filed an appeal from the decision of McWilliam J in the consolidated proceedings.

16. The annexures to the plaintiff’s affidavit dealt with his poor financial position, the range of medical conditions from which he is suffering, his lack of capacity for work and his need for left shoulder surgery. He also attached documents relating to the requirement for him to give evidence in criminal proceedings concerning a third party, and he attached various extracts from the pleadings in prior actions in which he had been involved and transcript extracts from some of those proceedings. The material relied upon by the plaintiff served to reinforce the observations of McWilliam J in the consolidated proceedings, that the plaintiff had been through a series of unfortunate events in his life and that his financial position, his family and his health have all been significantly affected by them.

Pleadings comparison

17. In oral submissions the plaintiff contended the claim he made in this proceeding was unique and had not been agitated in other proceedings. The plaintiff said that this proceeding was concerned more with the intentional use of cameras to record his face, with the consequence that the treatment of him in airport settings changed thereafter. In short, he asserted that he had been singled out for unfair treatment in airport security interactions since 2004, that has caused him to suffer loss and damage.

18. Whilst the plaintiff’s oral submission, that this was a different claim, was at least suggestive of a shift in focus in his own thinking about the difficulties he has experienced in his interactions with Commonwealth agencies over the years, a comparison of the pleaded claim in this proceeding, and the pleaded claim in SC 263 of 2023, reveals a factual substratum that is almost, if not entirely, identical.

19. The table below identifies portions of the pleaded statement of claim in each of the two proceedings that are identical or almost identical. To illustrate the level of consistency in the two pleadings, the portion relating to ACT Housing in each of the claims, is excerpted here: (a) Pleading in SC 53 of 2023: In the matter of ACT Housing 18. Who qualifies for public housing in Canberra? a. be 16 years or older; b. be in Australia legally; i. and not subject to any time limit imposed by law to stay in the country; c. be residents of the ACT six months before lodging the application. d. do not own any residential property in Australia. 19. The plaintiff is fulfilled the above conditions of the ACT Housing at paragraph 18 herein. 20. On 5/08/2013, the first plaintiff answered on the ACT Housing form the following question with the following annexures: 21. Please tell us why you are applying for social Housing Assistance: a. ANZ bank has taken a Court order for possession of my home. [Please refer to Annexure A, ACT Supreme Court order]; b. I reside along with my family in [REDACTED]. [Please refer to Annexure “B” electricity account as proof of my residence] c. My wife and I do not have any money. [Please refer to Annexure “C”, my wife’s and my bank accounts]. d. I reside at [REDACTED] along with my wide and 3 children. [Please refer to Annexure “D” proof of addresses of my wife, I and my 3 children]. e. I do not have a job. [Please refer to Annexure “E”. My wife’s and my Centrelink papers. f. I have provided 100 points ID. [Please refer to my proof of ID in Annexure “F”]. g. I have family of 5 living with me in full time basis in which one of them is still in school. [Please refer to Annexure “G” my wife and 3 son’s IDs] h. I can’t rent a house with no job, no income, no money, and no referee for job. [Please refer to Annexure “H” letter of rejection for renting a house for my family and me]. i. The plaintiff has contacted ACT housing since 5/08//2013 several times but the plaintiff is still homeless, carless and financially in a negative status. (b) Pleading in SC 263 of 2023: In the matter of ACT Housing 38․ Who qualifies for public housing in Canberra? a. be 16 years or older; b. be in Australia legally; i. and not subject to any time limit imposed by law to stay in the country; c. be residents of the ACT six months before lodging the application. d. do not own any residential property in Australia 39․ The plaintiff is fulfilled the above conditions of the ACT Housing at paragraph 18 herein. 40․ On 5/08/2013, the first plaintiff answered on the ACT Housing form the following question with the following annexures: 41․ Please tell us why you are applying for social Housing Assistance: a. ANZ bank has taken a Court order for possession of my home. [Please refer to Annexure A, ACT Supreme Court order]; b. I reside along with my family in [REDACTED]. [Please refer to Annexure “B” electricity account as proof of my residence] c. My wife and I do not have any money. [Please refer to Annexure “C”, my wife’s and my bank accounts]. d. I reside at [REDACTED] along with my wide and 3 children. [Please refer to Annexure “D” proof of addresses of my wife, I and my 3 children]. e. I do not have a job. [Please refer to Annexure “E”. My wife’s and my Centrelink papers. f. I have provided 100 points ID. [Please refer to my proof of ID in Annexure “F”]. g. I have family of 5 living with me in full time basis in which one of them is still in school. [Please refer to Annexure “G” my wife and 3 son’s IDs] h. I can’t rent a house with no job, no income, no money, and no referee for job. [Please refer to Annexure “H” letter of rejection for renting a house for my family and me]. i. The plaintiff has contacted ACT housing since 5/08/2013 several times but the plaintiff is still homeless, carless and financially in a negative status.

Subject matter SC 53 of 2023 SC 263 of 2023 Paragraphs in statement of Paragraphs in statement of claim claim

Apprehended bias, 6-15 26-35 airport interactions Remedies, loss, 17 20 damage

ACT Housing 18-21 38-41

Homelessness 22-24 42-44

Conduct, breaches, 26-32 46-52 apprehended bias

SC 492 of 2023 33-35 53-55 SC146 of 2023

Fraud, December 36-47 56-67 2002

Issues relating to P 48-54 68-74 and W

Fraud commencing 55-63 75-83 May 2004

Bicycle, assault 64-74 84-94

Damages, SC53 of 75-78 95-98 2023

20. The paragraphs identified above comprise virtually the entirety of the pleaded claim in each case. In the balance of the pleadings the only point of difference is in the description of the basis for the interaction between plaintiff and defendant; in this proceeding in the context of its management of airports, and in SC 263 of 2023 in its capacity as the body responsible for the issuing of visas.

Applicable rules

21. Rule 40(1)(e) of the CPR empowers the Court to set aside an originating process. Rule 40(2) provides: (1) However, the court must not— (a) set aside a proceeding only because the proceeding was started by the incorrect originating process; or (b) set aside an originating process only because the incorrect originating process was used.

22. Pursuant to r 111 of the CPR a defendant that has filed a conditional notice of intention to respond, seeking to have the originating process set aside, must make application to do so not later than 28 days after the notice was filed. The defendant has complied with that obligation. In Jorgensen v Wilson (No 2) [2023] ACTSC 40 at [30], Mossop J noted that although a conditional notice of intention to respond is more suited to questions of jurisdiction or service, the language of r 40(1)(e) is sufficient to allow a defendant relying upon that paragraph to seek to set aside an originating process on the basis that the proceedings amount to an abuse of process.

23. The Commonwealth in this instance does not seek to rely upon the power to strike out a pleading under r 425 of the CPR. Nor does it rely on the corresponding power, under r 1147, to pursue summary judgment.

24. Counsel for the Commonwealth indicated that the abuse relied upon to support the application to set aside the originating process in this instance was that the claim relied upon by the plaintiff had already been made and dismissed in the consolidated proceedings.

Legal principles

25. The principles relevant to the determination of whether there exists an abuse of process were summarised carefully by McWilliam J in Manny (No 2) commencing at [37]. Of particular relevance to the determination of the Commonwealth's application is the observation in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 (per French CJ, Bell, Gageler, Jeane JJ) at [25-26] (footnotes omitted): Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (See also Walton v Gardiner [1993] HCA 77; 177 CLR 378 at [23]; Coffey v Secretary, Department of Social Security [1999] FCA 375; 86 FCR 434; at [25])

26. In circumstances where the claim pleaded by the plaintiff in this proceeding is in terms almost identical to the claim pursued against the Commonwealth in SC 263 of 2023, a claim that has already been determined in this Court, the only conclusion that is open is that the plaintiff in this proceeding seeks to litigate anew a case which has already been disposed of in the earlier proceedings. It is therefore not appropriate that this proceeding is allowed to continue.

27. As the outcome in the consolidated proceedings was that the plaintiff’s claims were struck out, and the plaintiff has taken no steps to re-plead, the appropriate order is that this proceeding is stayed until further order of the Court.

The plaintiff’s application for summary orders

28. Having reached the conclusion above in respect of the Commonwealth's application, the plaintiff’s application is otiose.

Orders

29. I make the following orders: a. Pursuant to section 40(1)(g) of the Court Procedures Rules 2006 (ACT) proceeding SC 53 of 2023 is stayed until further order of the Court. b. Costs are reserved.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller Associate: Date: 1 August 2025