Manny v University of Canberra

1. Mr Manny (the plaintiff) is suing the University of Canberra (the University) in respect of a degree that he was undertaking at the institution over the period 2016 to 2020. The conduct that is the subject of the proceeding occurred between 2018 and 2020. By amended originating claim filed on 27 July 2023 (AOC) he seeks compensation in the sum of $38 million in damages. Of that, $36 million is claimed in damages for pure economic loss. $2 million is sought in compensation for enduring extensive pain and suffering. Applications for determination

2. By application dated 3 August 2023, the plaintiff sought summary judgment against the University, pursuant to r 1146(2) of the Court Procedures Rules 2006 (Rules).

3. In response, the University filed an application on 29 August 2023, seeking summary dismissal of the proceeding pursuant to r 1147(2) of the Rules . Under r 425 of the Rules, the University seeks alternative relief in the form of an order striking out the Amended Originating Claim dated 27 July 2023 (AOC) and the Amended Statement of Claim which accompanied it (ASOC).

Genesis of the dispute

4. The detail of the plaintiff’s complaint against the University is contained in the pleadings and the affidavit affirmed by the plaintiff on 3 August 2023. It is alleged that in the second semester of 2018, the plaintiff enrolled in a course at the University on immigration policy in Australia. At some point during the semester, the course convenor was changed to a person by the name of Ms Dickson. The new convenor requested the plaintiff to withdraw from the course. The pleaded reason for this was the convenor’s concerns that the plaintiff was a “whistleblower”. The convener was concerned that the plaintiff would “expose” rape allegations involving a member of the University’s staff. The pleading alleges that the plaintiff did not withdraw from the immigration course and subsequently the convenor failed the plaintiff.

5. In 2019, the plaintiff enrolled in the BGL Research Project PG course. He was intending to conduct research on the ACT Justice System regarding “a criminal fraud; apprehended bias and professional negligence” in Australia. Again, the course started with a different convenor, however Ms Dickson is alleged to have taken over the subject.

6. On 30 November 2020, the convenor emailed the plaintiff, suggesting that he write an essay on cyber bullying. The course convenor further recommended a colleague to the plaintiff who had done some work in the area. The plaintiff refused to change the topic of his essay, explaining that he was more interested in the accountability of the professionals, that he had already done lots of work on his topic and that it was too late for him to change topic. It is alleged that the convenor and the head of school did not give leave to the plaintiff to conduct research on the topic of his own choice.

7. The plaintiff alleges that he was withdrawn from all courses at the University, which I infer to mean he was suspended.

History of the litigation

8. These applications follow a previous interlocutory dispute over the pleadings: Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 (Manny 2023) at [59]-[89]. The findings in that proceeding inform the present applications. I have set them out in detail because it is important to understand the context in which the present applications come before the Court. The relevant findings are at [74]-[90] as follows: 74. To the extent that the pleading against the University refers in any way to other litigation in which Mr Manny or his associated entities were involved (being the defamation proceeding or the professional negligence proceeding), the University was not a party to either of those proceedings and the underlying facts of each proceeding make it clear that the University played no role in the events giving rise to each of the claims that have been litigated. 75. To the extent that the pleading already refers to the companies or losses suffered by them, the claim is defective as they are not parties and the defect cannot be cured because of my findings above in relation to joinder. For the reasons given above, I have been unable to discern even a kernel of a case that any of the corporate plaintiffs may have been able to bring against the University if any such case were properly pleaded. 76. The position is different in the case of Mr Manny, as the individual directly affected by the University’s conduct when he was a student. He has pleaded relief pursuant to (among other statutes) the Civil Law (Wrongs) Act 2002 (ACT), the Racial Discrimination Act 1975 (Cth), and the HR Act. 77. Applying the principles above, the Court assesses what has been pleaded on the basis that the facts alleged are true – that is, the University failed Mr Manny in the course he was undertaking for reasons other than merit, that the University then prevented Mr Manny from continuing with his education at the institution, and that Mr Manny has had health, economic and emotional consequences, the latter in the form of pain and suffering. 78. I accept that the pleading as it stands does not disclose a reasonable cause of action in the way that it has currently been drafted, and that most of the pleading is confusing, imprecise and difficult to follow. The pleading does not sufficiently expose the case the plaintiff intends to run, and has not been drafted in a way that enables the University to understand and respond to each allegation. 79. However, among the matters pleaded in the originating claim and statement of claim combined are allegations that: (a) The University owed Mr Manny, as a student, a duty of care; (b) The University treated Mr Manny in a way that breached its duty of care, during meetings, in its assessment of his work and in its prevention of him ultimately completing the course in which he was enrolled; and (c) As a result of the University’s conduct, which was a contravention of the law and duties owed by the University, Mr Manny suffered “substantial health damages”, “pure economic loss”, and “pain and suffering”. 80. The University submitted that references to negligence, professional duties and breach of duty of care are not particularised or tied back to any specific conduct of the University. It was further submitted that scattered amongst the pleading are references to other court proceedings and the conduct of others, which again, have nought to do with the University. 81. I accept those submissions and those matters strongly favour the striking out of the statement of claim in its entirety, but in light of the allegations made above, there is sufficient demonstration of a case capable of disclosing a reasonable cause of action in negligence by the plaintiff, Mr Manny, if the numerous defects in the manner of drafting were cured. 82. Further, there is enough information scattered throughout the pleading to raise the operation of the HR Act and the Racial Discrimination Act 1975 (Cth). 83. The pleading does not state the specific human right relied upon, as required by r 407A of the Rules, nor does it comply with the other requirements of the rule, in that the pleading does not set out the relevant content of the right or the facts on which the party relies to assert that the HR Act applies to the proceeding. 84. It seems fairly obvious though, from the content of the case pleaded, that s 27A of the HR Act is what Mr Manny is seeking to invoke. That section provides for a right to education, including the right to have access to further education, limited (by s 27A(3)(a) of the HR Act) to the entitlement to enjoy the right without discrimination. In alleging “apprehended bias” what Mr Manny is really attempting to allege is discrimination. 85. Section 40C permits a statutory action to be brought against a public authority. The University did not make any submissions about the application or otherwise of the HR Act to it. Public Authority is defined in s 40 to include “an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority...” 86. Section 40A then explains the meaning of a function of a public nature. It includes consideration of whether the function is conferred on the entity under a territory law and specifically includes “public education” as a function taken to be of a public nature. The University is established under s 4 of the University of Canberra Act 1989 (ACT) and its functions are set out in s 6 of that statute. All that it is necessary to find for the present purpose of determining whether there is a potential case is that the HR Act arguably applies to the University. 87. The University pointed to s 40C(3) as providing a time limit of one year for a claim made under the HR Act to be brought, however, that section also provides a power to the Court to order otherwise. 88. Finally, under s 40C(4) of the HR Act, the Court may grant the relief it considers appropriate, except damages. Part of the relief sought by Mr Manny is “any order the Honourable ACT Supreme Court finds appropriate” which is broad enough to include declaratory relief. 89. Overall, it can be seen from the above that there are at least two causes of action which are not “clearly untenable”. Accordingly, it is appropriate to permit Mr Manny an opportunity to replead. 90. It is unnecessary to separately consider the application of s 425(1)(b) or (c) as I have already accepted that the Statement of Claim must be struck out in its entirety.

9. On the basis of those reasons, orders were made striking out the statement of claim but granting leave in the following terms: Leave is granted to the first plaintiff to file an amended originating claim and an amended statement of claim limited to pleading any or all of the following causes of action: (a) Any statutory cause of action, including an action pursuant to the Human Rights Act 2004 (ACT), the Racial Discrimination Act 1975 (Cth), or any other statute, on the condition that the statute in question is named, the provision giving rise to the statutory action is specified, and the conduct said to constitute any breach of the named statute is separately set out. (b) Any action in negligence.

10. The ASOC that was subsequently filed must therefore be assessed in the context of the conditional leave that was granted. The Court’s discretionary power to grant summary judgment or summary dismissal

11. Rule 1146(2) of the Rules is as follows: (2) The court may give judgment for the plaintiff against the defendant for all or a part of the plaintiff's claim for relief, unless satisfied that— (a) the defendant has a good defence to the claim for relief on the merits; or (b) sufficient facts are disclosed to entitle the defendant to defend the claim for relief generally.

12. Rule 1147(2) of the Rules permits the Court to enter summary judgment for the defendant if satisfied that either the claim (or part of it) is frivolous or vexatious; or there is a good defence on the merits; or the proceeding should be finally disposed of summarily or without pleadings. It can be seen that this overlaps with the relief available under r 1146(2)(a) of the Rules.

13. The alternative basis raised by the respondent was r 425 of the Rules, which permits the Court to strike out a pleading in whole or in part if it: (a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; (b) may tend to prejudice, embarrass or delay the fair trial of the proceeding; (c) is frivolous, scandalous, unnecessary or vexatious; or (d) is otherwise an abuse of the process of the court.

14. What is required is an analysis of the pleadings to see whether they may be described in any of the terms of the rule: Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 at [41]. The University relied upon each of the matters set out in the paragraphs of r 425.

Applicable principles

15. The grant of summary relief (whether in part or in whole) is a discretionary remedy, to be exercised with the utmost caution and only in very clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; Young v Hones [2014] NSWCA 337 at [163].

16. In relation to applications for summary judgment in favour of the plaintiff, the approach was set out by then Master Mossop in Australia & New Zealand Banking Group Ltd v Manny & Ors (No 2) [2013] ACTSC 143, relying on earlier authority in Kevern v Marshall [2012] ACTSC 9 at [30]: …The court, on the basis of affidavit evidence, may give judgment for the plaintiff if satisfied that there is no triable issue or that there is no need for a trial. Summary judgment is given sparingly, in accordance with the High Court’s pronouncement in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 that summary judgment should be given with great care and only where it is clear that there is no need for a trial. Once it appears to the court that there is an issue of fact or law that deserves full consideration, the court will decline to give summary judgment and will direct the parties to proceed to trial.

17. In relation to applications for summary judgment in favour of a defendant pursuant to r 1147, a case is not to be summarily dismissed unless there is a high degree of certainty that it would fail if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57].

18. The principles applying to an application for summary judgment pursuant to r 1147 or striking out a pleading pursuant to r 425 are usefully summarised in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 at [5]: … (1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at 12). (2) The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). (3) The procedure calls for “exceptional caution” (General Steel at 129). (4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). (5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) [2005] FCA 244; 214 ALR 686 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965). (6) 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 at [9]). (7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).

19. What can be seen is that on either application, the threshold for either party to succeed is very high.

20. I have dealt with the application for summary dismissal first as that encompasses the essence of the consideration for the plaintiff’s application (whether the defendant has a good defence on the merits).

The amended pleadings against the University

21. In the AOC and ASOC, in accordance with the conditional leave granted in Manny 2023, the following causes of action are named first as the bases for which the plaintiff seeks relief: (a) Racial Discrimination Act 2004 (Cth) (Racial Discrimination Act) ss 18C and 18D; and (b) Human Rights Act 2004 (ACT) (Human Rights Act), s 27A(3)(a) (right to education) and ss 40, 40C and 40A (obligations of public authorities and legal claims brought under the Human Rights Act).

22. However, the plaintiff has again included allegations concerning the conduct of non-parties, which were addressed in Manny 2023. The plaintiff did not have leave to pursue those claims.

23. The plaintiff repeats an allegation of apprehended bias in the context of the decision to terminate (suspend) the plaintiff’s legal studies in 2018 and November 2020. That appears to be part of a broader negligence claim, with the plaintiff maintaining that the University breached its duty of care him by terminating his legal studies and stopping him from learning about the criminal law, which has resulted in “massive economic loss” and “pain and suffering” to the plaintiff.

24. That conduct is said to have been due to bias on the part of the University arising from previous orders being made in relation to a defamation proceeding litigated in this court: P and W v Manny [2010] ACTSC 50 (P and W). Again, an order is sought seeking to set aside the orders made in P and W.

25. In the AOC there is a list of legal authorities and references to legislation purporting to support one or more causes of action. The plaintiff also refers to criminal offences of public fraud, burglary, and common assault. Further, the AOC refers to the proceeding P and W being a malicious prosecution.

26. As to the loss claimed and the damages or compensation sought, the plaintiff alleges that the conduct of the University caused a 3-year delay in the plaintiff bringing a court proceeding in relation to an allegation of fraud against the Commonwealth. The plaintiff alleges he endured 3 years’ lost income and a loss of opportunity of future earnings. Further, the breach of professional duties and duty of care owed to the plaintiff resulted in an economic loss of $36 million to the plaintiff and pain and suffering of $2 million.

Should summary judgment be awarded in favour of the University?

27. Consideration of this question requires an assessment of whether any of the various causes of action alleged in the pleading contain a real question to be tried.

Claims of bias

28. As previously stated in Manny 2023 at [44]-[45], apprehended or actual bias is not of itself a cause of action but rather a principle applying in the context of fair decision-making in the exercise of statutory power. For example, it may constitute a ground for judicial review of an administrative decision, but it is not a separate cause of action grounding any relief in damages or compensation.

Claims in negligence

29. The University relied in part upon the academic record for the plaintiff. Although on an application such as this, the court takes every fact pleaded as being true, the academic history only records the plaintiff as being enrolled in a Master of Business Management course from 2016, and commencing only a marketing unit in 2018, a subject which he appears to have taken again in 2019, and for which he achieved a High Distinction grade. The independent research unit was commenced in 2019. There is no reference to the plaintiff studying an immigration policy or any legal studies course in 2018.

30. Given there is a degree of confusion in what has been pleaded, what I have assumed to be true on the material facts pleaded is: (a) The plaintiff was studying at the University during the relevant period. (b) For one unit, the plaintiff sought to research a topic that the course convenor did not approve. (c) The plaintiff did not complete that unit. (d) The plaintiff was subsequently suspended. (e) Reasons for the non-completion of the research unit and subsequent suspension may have included views the decision-makers at the University took of the plaintiff, arising in part or in whole from previous litigation that they may have read about involving the plaintiff (being the judgment in P and W). (f) The combination of those matters caused the plaintiff great distress. (g) The distress and inability to learn about criminal law as part of his Business Management course delayed the plaintiff by three years in commencing proceedings against the Commonwealth of Australia. (h) This caused a loss of income over that three-year period as well as a loss of future opportunity of earnings.

31. The University submitted that it owed no duty to a student enrolled in a Business Management course to assist the student to understand criminal law. To the extent that the claim was one for purely economic loss, further arguments were made about an essential requirement of vulnerability (citing Perre v Apand [1999] HCA 36; 198 CLR 180; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515) and the lack of that element in the circumstances presently before the court. The University submitted that it could not come under any special duty to protect the plaintiff’s economic interests in circumstances where he was a student undertaking an independent research unit.

32. The University made two further submissions: (a) Even if a duty of care was able to be established, the duty of care in negligence only extends to taking precautions against foreseeable risks of harm: s 43, Civil Law (Wrongs) Act 2002 (ACT). (b) The facts were incapable of establishing that the University knew or ought to have known of any risk of harm to the plaintiff of the kind that the plaintiff alleges he suffered – a delay in commencing court proceedings against a non-party.

33. The University therefore contended that the pleading still does not sufficiently expose the case the plaintiff intends to run and has not been drafted in a way that enables the University to understand and respond to each allegation. It would be futile to permit the litigation to continue when the duty necessary for the plaintiff to succeed cannot possibly be a duty that the court would recognise.

34. I accept the University’s submissions. On an application for summary dismissal of a proceeding, the court scrutinises pleadings that are poorly and sometimes unintelligibly drafted to see whether the plaintiff is arguing a reasonable cause of action, but does not go as far as undertaking an analysis to search for an arguable point that the plaintiff may have missed: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21].

35. 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.”

36. There have now been two opportunities involving the scrutiny of the pleadings and the factual circumstances underlying them, with a view to assessing whether there is a reasonable cause of action in negligence being argued by the plaintiff. This is no longer a case of a plaintiff having difficulties in pleading or complying with the rules of pleading. The difficulties with the plaintiff’s cause of action are fundamental. The nature of the duty is but one. Causation and remoteness of damage are equally unarguably absent. The litigation has reached the stage where the lack of a reasonable cause of action has now been clearly demonstrated.

The claim under the Racial Discrimination Act

37. As seen from what was said in Manny 2023 and the conditions attached to the grant of leave, the plaintiff’s complaints appeared to raise a question about racial discrimination in decision-making concerning the plaintiff at the University. Having now given the plaintiff the opportunity to replead to bring the issue properly to the fore, and with the benefit of argument, the facts establish that the court lacks jurisdiction to deal with any complaint that decisions about the plaintiff’s ability to continue studies at the University were motivated by racial discrimination. I have dealt with the Racial Discrimination Act claim in Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146 (Manny v Commonwealth (No 2)) at [69]-[70]. The same difficulties apply in respect of any claim to be brought against the University.

38. Any claim based upon a breach of the Racial Discrimination Act it is governed by a Federal statutory regime. The University relied on Picos v Australian Federal Police [2015] FCA 118 at [36]-[38]. Any right to bring a statutory complaint under the Racial Discrimination Act commences with a complaint being first lodged with the Australian Human Rights Commission under s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

39. If that complaint has been terminated and notice given, then an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2): s 46PO of the AHRC Act. However, the making of a complaint is a pre-condition to any statutory cause of action sought to be pursued. Neither the AHRC Act nor the Racial Discrimination Act give rise to any common law cause of action for relief: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [7]. That judgment was dealing with the Sex Discrimination Act 1984 (Cth) but the legislative scheme is the same as that under consideration here with regard to racial discrimination. Absent any initial complaint, the Court simply does not have jurisdiction: Picos at [38].

40. No complaint process under the AHRC Act has been followed by the plaintiff here. Accordingly, this Court has no jurisdiction to deal with any claim arising under the Racial Discrimination Act. Given that fundamental difficulty, it is not appropriate to go further and assess whether any potential claim based upon racial discrimination might otherwise have merit, as that would trespass on matters accorded to a different jurisdiction. It suffices to explain to the plaintiff why couching the material facts pleaded in a way that invokes the Racial Discrimination Act does not invoke a reasonable cause of action capable of being pursued in the ACT Supreme Court.

The claim under the Human Rights Act

41. Similarly, given the contents of the previous iteration of the pleading, following Manny 2023 an opportunity has been given to the plaintiff to make a further attempt to disclose a claim under the Human Rights Act.

42. Under s 27A of the Human Rights Act, the right to education exists but it is limited to a right to enjoy the right to education without discrimination: s 27A(3)(a) of the Human Rights Act. Section 40C(6) of the Human Rights Act provides that the Supreme Court may grant any relief it considers appropriate in a proceeding commenced under the Human Rights Act “except damages.” As damages remains the only relief sought by the plaintiff, he is seeking something that he cannot get by invoking this statutory cause of action. Given the clarity of the words of the section, on the facts of the dispute between the parties here, it would be futile to permit any further opportunity to replead.

43. The only other order requested was for the orders of Gray J in P and W to be set aside. In respect of the relief sought (to set aside the orders of Gray J made in 2010), the University submitted that the plaintiff “continues to ignore what he has been told time and time again”, which is that he cannot now set aside orders from a judgment delivered in 2010 the orders of which merged on appeal: Shiels v Manny and Manny Pty Ltd; Manny v Shiels [2012] ACTCA 22.

44. This aspect of the claim in the present proceeding was dealt with separately in Manny v Commonwealth (No 2) at [37]-[40] and [44]-[51]. The reasoning there set out applies with greater force in this proceeding where not only was the University not a party to the original litigation, but the most that may be said on the material facts pleaded is that the University may have become aware of the litigation. The complaint involves allegations of fraud against police officers that have been determined and has no arguable connection to the University. That entire aspect of the claim is an abuse of process.

Claims against third parties

45. In the AOC and ASOC, other allegations are made in relation to third parties, including an allegation of medical negligence against ACT Health. These must be put to one side as having no bearing on the proceeding. They involve no conduct by the University.

Conclusion

46. As will be apparent from the reasons above, on the material facts disclosed involving the plaintiff’s interaction with the University, there is no claim raised by the plaintiff (even faintly) which is capable of being argued against the University. In those circumstances, it is appropriate to dismiss the proceeding.

47. That result will also dispose of the plaintiff’s application. In circumstances where no arguable claim is propounded, there is nothing for the defendant to respond to, which plainly makes summary judgment for the plaintiff inappropriate. To avoid any future doubt, an order dismissing that extant application will be made. Costs

48. Costs are in the discretion of the court, with such discretion to be exercised according to established principles. The defendant has been successful and accordingly, an order for costs should be made in its favour. Whether, having achieved a result that concludes the litigation, the University then seeks to engage further with the plaintiff in pursuing any costs order in its favour, including through any assessment process, is a matter best left to the defendant.

Orders

49. The Orders of the Court (the first three made on 14 April 2025) are as follows: (1) The Amended Originating Claim and Amended Statement of Claim filed 27 July 2023 are each struck out. (2) Proceeding SC 513 of 2022 is dismissed. (3) The plaintiff is to pay the defendant’s costs of the proceeding. (4) The extant application in proceeding filed by the plaintiff on 3 August 2023 is dismissed.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: