Manny v Sims and Parbery from PPBAdvisory, ANZ Bank Ltd and McGrathNicol [2012] ACTCA 42

Court of Appeal (ACT)|2012-11-01|Before: Burns J, Refshauge ACJ

ACTING CHIEF JUSTICE REFSHAUGE DIRECTS THE REGISTRAR:

1. To accept the Application in Proceedings dated 25 October 2012 and make it returnable before the Court of Appeal on the hearing of the appeal on 8 November 2012.

2. To serve a copy of this direction and these reasons to each of the parties to the appeal.

2. The Registrar may also, under that rule, refer the document to a judicial officer for directions about how to deal with it. I have explained the background and operation of that rule in King v The Honourable Terence Higgins AO [2009] ACTSC 153. I adopt what I there said and do not need to repeat it.

3. The Registrar has now sought a direction under r 6142 in respect of the document referred to below.

4. The document with which this direction is concerned is an Application in Proceedings (the Application) dated 25 October 2012, lodged by Jeff Manny for filing in proceedings No. ACTCA 16 - 2012, seeking orders in relation to that appeal.

5. To understand the circumstances under which the document has been referred to me, it is necessary to outline some history of the matters involving Mr Manny. This history is taken from the decision of Harper M in Manny v Sims [2011] ACTSC 58 and from material on Court files in proceedings involving Mr Manny.

6. Mr Manny is a developer who had, by mid-2009, built up through companies and trusts under his control a substantial portfolio of commercial and residential real estate. Some of this property was apparently acquired by means of funds provided by the second respondents, Australia and New Zealand Banking Group Limited (the Bank), secured by mortgages and a mortgage debenture over the assets of certain of the companies controlled by Mr Manny and other arrangements. The facilities were expressed to terminate on 17 August 2009 and the rest on 17 October 2010.

7. Mr Manny and the companies did not repay the loans on or before 17 October 2010 and on 1 November 2010, and, as a result of this failure, the Bank served a Notice of Default on each of the companies claiming a total of $10 733,090.02 owing to the Bank.

8. On 22 December 2010, the Bank appointed the first respondents as receivers of the commercial and residential properties of the companies under the mortgages for the purpose of collecting the rents of the properties on behalf of the Bank. On 20 January 2011, the Bank issued notices under s 93 of the Land Titles Act 1925 (ACT) of its intention to exercise its power of sale over the properties. On 21 January 2011, the Bank extended the appointment of the first respondents to be receivers and managers of the charged property generally.

9. On 28 February 2011, the Bank appointed Mr Shane O'Keefe and Mr Murray Smith of the third respondents as administrators of the relevant companies under s 436C of the Corporations Act 2001 (Cth).

10. Mr Manny challenged the appointments of the receivers and managers and of the administrators in this Court and sought orders under s 447E of the Corporations Act. Master Harper dismissed the applications and the proceedings on 8 April 2011: Manny v Sims.

11. The Bank then, in separate proceedings, No. SC 746 of 2011, sought to recover a debt it claimed Mr Manny personally owed it and to take possession of his home which had been mortgaged to secure the debt.

12. Mr Manny sought in those proceedings to join the receivers and managers and the administrators so that he could re-agitate the validity of their appointments. Unsurprisingly, Burns J refused that application: Australian and New Zealand Banking Group Ltd v Manny (Unreported, Supreme Court of the ACT, Burns J, 14 March 2012).

13. Mr Manny sought leave to appeal against that decision, leave being needed because it was an interlocutory decision. Before that application could be heard, Mr Manny sought and was granted by the learned Chief Justice on 18 April 2012 leave to appeal out of time to the Court of Appeal from the decision of Master Harper.

14. The application for leave to appeal against the decision of Burns J then came before me and, on 15 October 2012, I dismissed the application: Manny v Australian and New Zealand Banking Group Ltd [2012] ACTCA 40.

15. By this time, Mr Manny had commenced his appeal against the decision of Burns J under the leave granted by the learned Chief Justice. That is the appeal No. ACTCA 16 - 2011 in which Mr Manny is the appellant and the receivers and managers, the administrators and the Bank are the respondents.

16. The Notice of Appeal was filed on 24 April 2012 by a firm of lawyers then acting for Mr Manny. On 7 June 2012, the Deputy Registrar, having settled the Index to the Appeal Papers, gave directions that the Appeal Papers were to be prepared by 30 July 2012. An intimation was given that Mr Manny may wish to adduce further evidence on the appeal and his lawyer was reminded of the need for a formal application under r 5606 of the Court Procedures Rules.

17. The appeal was listed at the callover on 11 July 2012 when I varied the direction of the Deputy Registrar at the request of Mr Manny's lawyers and made further directions, including that the Appeal Books were to be filed by 30 September 2012 and that any application to adduce further evidence, with an affidavit in support, was to be filed and served on or before 30 July 2012.

18. On 23 August 2012, I made further directions by consent including extending the time with which the application to adduce further evidence was to be filed to 31 August 2012. That direction was complied with and an Application in Proceedings seeking to adduce further specified evidence was filed on 31 August 2012.

19. The matter came before the learned Chief Justice on 19 September 2012. On that day, Mr Manny parted from his lawyers, in not entirely amicable circumstances it appears.

20. A number of matters were dealt with by the learned Chief Justice. There was some discussion about whether the matter had been listed for hearing, and Mr Manny noted that the Court website appeared to list the hearing on 9 November 2012. His Honour confirmed that the 9 November listing appeared in the term list but not elsewhere on the Court file. I pause to note that the parties were formally advised by the Registrar of the correct hearing date (8 November 2012) by letter the following day. Mr Manny asserted to the learned Chief Justice that he was "not ready for the case" to proceed in November, however, he did not press for an adjournment. Mr Manny was directed to deliver the draft Appeal Papers within four hours to the respondents' lawyers.

21. He also indicated that he wanted to withdraw the application to adduce further evidence that his lawyers had filed and replace it. He was asked "How long will it take?" and he said "One month". The learned Chief Justice accordingly directed that any such application be filed on or before 19 October 2012.

22. By application in proceedings dated 2 October 2012, Mr Manny applied to vacate the hearing date for the appeal and to extend the time within which he could file the application to adduce fresh evidence. The application sought the following orders:

I am seeking the ACT Court of Appeal to adjourn the date, to file the further evidences from 19 October to 19 December 2012 or further, in the matter of ACTCA 16 of 2012.
I am seeking also the ACT Court of Appeal to adjourn the date of court hearing of 8 and 9 November 2012 to January 2013 or beyond, in the matter of ACTCA 16 of 2012.

23. The application was heard on 17 October 2012. After reading three extensive affidavits sworn by Mr Manny and dated 19 September 2012, 2 October 2012 and 17 October 2012 and some correspondence tendered by the first and second respondents, I refused the orders. I also expressly declined to read the affidavit of 16 October 2012 of Mr Manny which I considered irrelevant.

24. Mr Manny has now applied for further orders as noted above (at [4]). The orders he now seeks in the document that has been referred to me are as follows:

Stay of date of filing an application to adduce fresh and further evidence of 1 April 2012 until my application leave to appeal and Notice to Appeal is heard in the ACT Court of Appeal.
Stay of date of hearing of 8-9 November 2012 until my application leave to appeal and Notice to Appeal is heard in the ACT Court of Appeal.
The applicant be given time until 23 December or later to file further documents in the matter of ACTCA 16 of 2012.
The hearing of 8 and 9 November 2012 in the ACT Court of Appeal in the matter of ACTCA 16 of 2012 to be vacated and a new hearing date to be set for early 2013.

25. As can be seen, the orders are substantially the same as those sought in the application before me on 17 October 2012. I note, too, that Mr Manny proposes to rely on the same four affidavits on which he relied or sought to rely in the hearing before me on that date.

26. The original application (see [22] above), was, however, an interlocutory one and there is no bar from bringing further interlocutory applications. As Taylor J said in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 440-1, though about an application to extend time for commencing proceedings, also an interlocutory application:

The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action.

27. Gibbs CJ explained in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248 about further interlocutory applications:

In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application.

28. Nevertheless, it has been considered that a second application made on the same material may amount to an abuse of process. Thus, Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393 that there can be an abuse of process if,

notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

29. Following his Honour's citation of this passage, Hayne JA (as his Honour then was) commented in D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582 at 604:

If an applicant for an extension of time were to fail in one application but then at once institute a second application relying on precisely the same material, there would appear to be powerful reasons to conclude that the second application was vexatious. On its face the application would be no more than an attempt to re-litigate a matter that had already been determined once.

30. This seems to me to be very close to this case. Mr Manny seeks to relitigate the very issues that I decided on 17 October 2012.

31. Two matters, however, make me pause before I give a direction to the Registrar under r 6142. In the first place, Mr Manny is a litigant in person. He is, of course, no stranger to litigation. There are, on the Court's Russell Fox Library database, no less than five proceedings (leading to seven decisions) in which he has been involved, though in only two, that is those since 2011, has he appeared on his own behalf. He has, in addition, appeared in 2012 on his own behalf on six substantive occasions. Nevertheless, he is neither legally trained nor qualified. He may not have been able fully to articulate his case in the first place.

32. The second and more significant matter, however, is that the decision I made was by a single judge though acting as the Court of Appeal. Mr Manny could always make the application for an adjournment before the Court of Appeal constituted by a bench of three judges when the appeal is called on for hearing.

33. In all the circumstances, it seems to me that it may not be an abuse of process to permit Mr Manny to make this application to the Court of Appeal constituted by the three judges who will hear the appeal, though there has to be a very strong likelihood that the application will fail without additional evidence or some change in circumstances. I have some hesitation in so deciding.

34. It will, however, promote the orderly disposal of business if the Court and the other parties are forewarned of the application. The Court may, of course, consider that the application is an abuse of process.

35. That I have not directed that the Application be listed for an earlier hearing does mean, of course, that if the application is rejected, Mr Manny will have to proceed with the appeal on 8 November 2012 and, unless, he files his application to adduce further evidence by 1 November 2012, he may lose the right to make that application at all.

36. In order that the parties be aware of the circumstances, of this direction, I will direct the Registrar to give a copy of this Direction to all the parties to the appeal.

1. To accept the documents and to make the Application in Proceedings returnable before the Court of Appeal on the hearing of the appeal on 8 November 2012.

2. To deliver a copy of this direction and these reasons to each of the parties to the appeal.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for the Administrative Direction herein of his Honour, Acting Chief Justice Refshauge.

Procedures Rules 2006

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)