Australia and New Zealand Banking Group Limited v Jeff Manny
[2013] ACTSC 116
•12 June 2013
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED v JEFF MANNY & ORS
[2013] ACTSC 116 (12 June 2013)
CIVIL LITIGATION – jurisdiction, practice and procedure – application to strike out pleadings – where pleadings fail to disclose a reasonable cause of action – where parallel proceedings commenced in different courts.
Court Procedures Rules 2006 (ACT) rr 302, 406, 425, 462
Attorney General v Wentworth (1988) 14 NSWLR 481
Re AWB Ltd (No 10) (2009) 76 ACSR 181
Bruce v Odhams Press Ltd [1936] 1 KB 697
Re Cameron [1996] 2 Qd R 218 at 220
Canberra Data Centres v Vibe (2010) 4 ACTLR 114
Dart v Norwich Union Life Australia Ltd [2002] FCA 168
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railway (NSW) (1964) 112 CLR 125
Jeff Manny and Ors v Anthony Sims and Ors [2011] ACTSC 58
Jeff Manny v Australian and New Zealand Banking Group Limited [2012] ACTCA 40
Jeff Manny v Anthony Sims & Stephen Parbery from PPB Advisory and ANZ Bank Ltd and McGrathnicol [2013] ACTCA 9
Moore v Inglis (1976) 9 ALR 509
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 41-522
No. SC 746 of 2011
Judge: Master Mossop
Supreme Court of the ACT
Date: 12 June 2013
IN THE SUPREME COURT OF THE )
) No. SC 746 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff
AND: JEFF MANNY
Defendant
ANTHONY SIMS and STEPHEN PARBERY
First Defendant to counterclaim
SHANE O’KEEFE and MURRAY SMITH
Second Defendant to counterclaim
ORDER
Judge: Master Mossop
Date: 12 June 2013
Place: Canberra
THE COURT ORDERS THAT:
Those portions of the amended defence and counterclaim dated 7 February 2013 shown as struck through in the document entitled “Relief sought by Sims and Parbery re Amended Counterclaim” be struck out.
The defendant pay the costs of Anthony Sims, Stephen Parbery, Shane O’Keefe and Murray Smith of and incidental to their applications filed 19 and 22 February 2013 respectively.
That the proceedings be listed for any other consequential orders and directions on 27 June 2013.
Introduction
In these proceedings the Australia and New Zealand Banking Group Ltd (“the ANZ”) is the plaintiff and Mr Jeff Manny (“Mr Manny”) is the defendant. The originating claim was lodged on 27 October 2011. The claim is for a debt of some $424,691.49 owing under two agreements between the ANZ and Mr Manny. The claim also seeks judgment for possession of land being a property identified as block 45 section 10 Flynn in the Australian Capital Territory. The ANZ provided credit to M Manny via two bank accounts and it is alleged that the ANZ has required payment of all money under those agreements and that Mr Manny has failed to repay that money. It is also alleged that Mr Manny secured the two agreements by granting a registered mortgage over the property in Flynn. It is alleged that the mortgage confers a right of possession that is contingent upon there being a default under the mortgage by Mr Manny and that he has defaulted as a consequence of his failure to pay money to the ANZ.
Ultimately, after a somewhat lengthy history to which I will refer below Mr Manny filed an amended defence and counterclaim on 7 February 2013. That amended defence and counterclaim included a claim against Anthony Sims and Stephen Parbery who are receivers appointed in relation to the property of various companies with which Mr Manny is associated. I will refer to them as “the Receivers”. Also joined as a party to proceedings and subject to claims in the counterclaim are Shane O’Keefe and Murray Smith who are insolvency practitioners appointed initially as administrators and now as liquidators of some companies associated with Mr Manny. I will refer to them as “the Administrators”. The counterclaim contains allegations directed to the plaintiff as well as the Receivers and the Administrators.
The present applications before the Court are applications brought by the Receivers and by the Administrators to strike out the counterclaim against each of them. The Receivers move on an application lodged on 19 February 2013 and the Administrators move on an application in substantially the same form as that of the Receivers that was lodged on 22 February 2013. The applications seek that the amended counterclaim be struck out as against the Receivers and Administrators respectively and, in the alternative, seek summary judgment against Mr Manny in favour of the Administrators or Receivers. The grounds upon which that relief is sought can be summarised as follows:
a) the counterclaim should be struck out under rule 425 of the Court Procedures Rules because it is frivolous or vexatious or because it does not disclose any reasonable cause of action;
b) the counterclaim does not satisfy the requirements of rule 462 of the Court Procedures Rules because there is not sufficient connection between the relief sought in the counterclaim and the original subject matter of the proceedings between the plaintiff and the ANZ;
c) the amended counterclaim is an abuse of process because the key allegations against the Receivers and the Administrators are subject of a previous decision of this Court or are presently the subject of other proceedings brought by Mr Manny in either the ACT Magistrates Court or the ACT Civil and Administrative Tribunal.
In order to understand the current application it is necessary to understand a little bit more about the proceedings involving Mr Manny. In proceedings SC 180 of 2011 Mr Manny challenged the validity of the appointment of the Receivers and the Administrators and sought orders removing them from those positions as well as consequential orders. Master Harper, in a decision published on 8 April 2011, dismissed Mr Manny’s application and dismissed the claim in its entirety: Jeff Manny and Ors v Anthony Sims and Ors [2011] ACTSC 58. His Honour reviewed at ([8]-[23]) the financial dealings between the ANZ and Mr Manny and various companies associated with him, Family Court proceedings between Mr Manny and his wife and the default in repayment of loans by Mr Manny’s companies in late 2010. Master Harper reviewed the powers that were available to the Court and treated the application made by Mr Manny as though it was an application for a declaration that the purported appointments of Mr Sims and Mr Parbery, the Receivers, were invalid. His Honour was satisfied that the Receivers were validly appointed and as a consequence that Mr Manny’s claim for a declaration that their appointment was invalid must fail: [31]. In relation to the appointment of the Administrators, although his Honour had specific powers under s 447C of the Corporations Act, his Honour was satisfied that the mortgage debenture gave the ANZ power to appoint administrators and the appointments of the Administrators were made validly pursuant to those powers: [30].
His Honour also addressed matters that were raised in submissions which might provide a basis for the making of orders under ss 447A or 447E in relation to the administration. In relation to those issues his Honour said at [33]:
Whilst I acknowledge and understand Mr Manny’s concerns, I am not persuaded that any of the other matters he has raised in submissions would justify my making orders under section 447A or 447E which would interfere with the orderly course of the administration. His conviction that he could get better prices for the companies’ assets if he were permitted to take charge of the sale process rather than leaving it in the hands of the Administrators is entirely understandable and may be soundly based, but it is not a reason to end the administration and place Mr Manny back in charge of the companies’ fortunes. The fact is that the companies owe the bank something of the order of $10m and are not in a position to pay it back without at least selling a major portion of their assets, probably most and perhaps nearly all of their assets. The companies are accordingly unable to repay at least their debts to the bank as they fall due and are technically insolvent. It cannot be expected that the court in such circumstances will return control of a company to its director or directors.
His Honour’s decision was subject to an appeal to the Court of Appeal which was heard on 8 and 9 November 2012 and a decision given on 27 February 2013: Jeff Manny v Anthony Sims & Stephen Parbery from PPB Advisory and ANZ Bank Ltd and McGrathnicol [2013] ACTCA 9. The Court of Appeal (at [21]-[22]) found that there was no error in Master Harper’s conclusions that the Administrators and Receivers were validly appointed. The Court also set out the terms of paragraph 33 of the Master’s judgment which I have set out above. The Court noted that there was no specific ground of appeal challenging the decision of the Master to dismiss the originating application as well as the interlocutory application. Having regard to the way the matter was argued before the Master and before the Court of Appeal, the Court found that there was an adequate explanation for the dismissal of the originating application as well as a proper foundation for doing so.
Returning to the current proceedings which were commenced in October 2011, Mr Manny made an application in February 2012 for various orders. That application was heard on 14 March 2012 and on that occasion Mr Manny agreed that he wished to join the Receivers and Administrators in the proceedings and have their appointments set aside. On that day Justice Burns refused to make either of those orders and granted Mr Manny 30 days in which to file his defence. Mr Manny wished to challenge those orders and ultimately an application for leave to appeal from Justice Burns’s interlocutory decision was heard on 12 October 2012 and a judgment given on 15 October 2012 by Acting Chief Justice Refshauge: see Jeff Manny v Australian and New Zealand Banking Group Limited [2012] ACTCA 40. The application for leave was ultimately dismissed and Mr Manny was required to pay the costs of the application: [44].
In the course of his decision Refshauge ACJ noted (at [32]-[35]) that Mr Manny did not require leave to join the Receivers or Administrators to the proceedings and could do so without leave by bringing a counterclaim so long as it complied with rule 462 of the Court Procedures Rules. His Honour noted that Mr Manny would need to plead a properly maintainable claim against the new party and observed, in passing (at [35]), that “the validity of the appointment of the Receivers and Administrators are so unlikely to meet the test that is set out in rr 462 and 302 that they could almost certainly not be the subject of either a counterclaim or third party notice.” His Honour also noted that any attempt to re-litigate the validity of the appointment of the Receivers and Administrators would amount to re-litigating the issue that had been determined by the decision of the Master and would amount to an abuse of process: [36].
It appears that Mr Manny has taken up his Honour’s suggestion by joining the Receivers and Administrators in his amended defence and counterclaim filed on 7 February 2013. I will describe this document in some more detail below. It is this document that the Receivers and Administrators seek to have struck out.
In support of the Receivers application two affidavits of John Bird, a solicitor employed by the Receivers’ solicitors, recounting the history of proceedings, were read. The Receivers also tendered documents filed by Mr Manny in the ACT Civil and Administrative Tribunal (Exhibits 1 and 2) as well as brief extracts from the ASIC database (Exhibit 3) showing that three companies associated with Mr Manny, JK3L Pty Ltd, Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd were under some form of external administration and that one company associated with Mr Manny, Landagency Pty Ltd, was not.
In support of the Administrators’ application an affidavit of John Hill, a partner in the firm representing the Administrators, outlining the history of proceedings was read.
Mr Manny read an affidavit dated 6 June 2013 as well as a very substantial affidavit affirmed 30 January 2013 which, together with its exhibits covered some 828 pages. Mr Manny also tendered a bundle of documents which became Exhibit A.
The Receivers provided written submissions which were substantially adopted by the Administrators. Mr Manny provided three sets of written submissions headed “My submission for court hearing of 6 June 2013 in the ACT Supreme Court in the matter of SC746 of 2011” “425 Pleadings–striking out” and “7 June 2013, My submission in legitimacy of my Defence and counterclaim- Amended on 7 February 2013”.
Consideration
The amended defence and counterclaim filed does contain a defence which deals with the various paragraphs of the ANZ’s statement of claim. It also includes what appears to be an application for leave to join a number of companies associated with Mr Manny, namely, JK3L Pty Ltd, Jeff Manny Constructions Pty Ltd, Lonagann Pty Ltd and Landagency Pty Ltd. In relation to that application the document refers to a large number of rules in the Court Procedures Rules and various provisions of the Corporations Act2001 (Cth). In relation to the counterclaim, paragraphs 30-82 contain what appear to be intended to be allegations of fact and paragraphs 83-90 which appear under the heading “Remedies” appear to contain statements of the relief sought by Mr Manny.
Notwithstanding the terms of the defence and counterclaim, no application has been made to join the additional parties or, if the terms of the document itself are taken to amount to an application, that application has not yet been heard. As a consequence, none of the corporate entities sought to be joined by Mr Manny have been joined as parties to the proceedings. I have dealt with the matter on the basis that Mr Manny was able to make any submissions that he wished in relation to the strike out application including submissions which might be made only if it was assumed that one or other of the corporate entities was ultimately able to be joined as a party to the proceedings. In other words I did not consider that it was appropriate at this stage to determine any of the issues on the basis of Mr Manny’s possible lack of standing.
No reasonable cause of action – rule 425(1)(a)
Rule 406 of the Court Procedures Rules requires that a pleading include “a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved”. It must state specifically any matter that, if not stated specifically, might take another party by surprise: r 406(1)(c). It must state specifically any relief that the party claims: r 406(1)(d) and, if a claim or defence under a statute is relied upon, identify the specific provision of the statute: r 406(1)(e).
A statement of claim will be defective if it fails to allege material facts which in a comprehensible manner describe a known cause of action. In Dart v Norwich Union Life Australia Ltd [2002] FCA 168 a full court of the Federal Court comprising Beaumont, Finn and Sundberg JJ said (at [31]):
By way of preface, a comment should be made on the purposes of pleadings. These include to define the issues in a proceeding so that the parties may know in advance the case they have to meet: Dare v Pulham (1982) 148 CLR 658 at 664. A necessary precondition of this is that the pleading must disclose a reasonable cause of action against the party against whom that particular cause of action is brought and it must state all the material facts which are necessary to establish that cause of action as also the relief sought. A “reasonable cause of action” for this purpose means one with some chance of success if regard is had only to the allegations in the pleadings relied upon by the applicant: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 at 529.
Similarly, in Canberra Data Centres v Vibe (2010) 4 ACTLR 114, Refshauge J collected authorities on pleadings which illustrate the requirement to plead material facts. In particular, his Honour referred to Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 for the proposition that “if any one ‘material’ fact is omitted the statement of claim is bad” and the statement of Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 41-522 at 42, 679 that in order to achieve the primary functions of pleadings “a statement of claim must set out clearly, not just the bare claim that is made, but also “the material facts on which it is based”, including facts that, if not specifically pleaded might take the other party by surprise.”
Striking out a pleading because it does not disclose the material facts required by the rules and a properly constituted cause of action is to be distinguished from striking it out because the matter is properly pleaded but what is pleaded could not give rise to a cause of action. The former relates to defective pleading and the pleading is struck out so that the case can proceed in a manner that is procedurally fair by insisting on compliance with the rules of pleading. The latter relates to whether or not a cause of action could in law be made out. It is this latter type of strike out to which the high bar articulated in Dey v Victorian Railway Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railway (NSW) (1964) 112 CLR 125 applies.
It is very clear that the counterclaim pleaded in the present case does not comply with the requirement of rule 406 that it plead the material facts required to establish Mr Manny’s causes of action. Rather, the paragraphs of the counter claim articulate a series of separate conclusions which assert either illegality or impropriety on the part of the ANZ or the Receivers or Administrators or one or more of them without articulating in any coherent way the material facts which give rise to the conclusion or articulating the legal rule which has been contravened so as to give rise to the liability of one or other of the parties.
For example, paragraphs 33, 41, 42, 43, 44, 45, 47, 50, 51, 53, 54, 55, 59, 60 are amongst the paragraphs which make allegations directed to the Receivers or the Administrators. They are as follows:
33. the Non-payment of fees for work, services and goods rendered to the Receivers... by me (First Defendant) and Land agency Pty Ltd (Seventh Defendant) and rent due and payable to the Land agency Pty Ltd by the Fourth, Fifth and Sixth Defendants.
...
41. The Unlawful appointment of the Receivers... appointed to the Jeff Manny Group of Companies is the cause of non-payment of my home mortgages (since the instrument of 22 June 2009 was faulty, had lost its effect and void, voidable and not enforceable).
42. The Unlawful behaviour of the Receivers... appointed to the Jeff Manny Group of Companies is the cause of non-payment of my home mortgages.
43. The Unlawful behaviour of the Receivers... to the Landagency Pty Ltd the property managers and administrators of Jeff Manny Group of companies which is not under Receivership nor Administership of ANZ bank which is the cause of non-payment of my home mortgages.
44. The disclaimer of the contract of the Land agency Pty Ltd… with the JK3L Pty Ltd was detrimental to assets realisation of the properties of the First, Fourth, Fifth, Sixth and Seventh Defendants wether was unlawful or abuse of the process or negligence.
45. The Unlawful behaviour of the Receivers... by removing my personal money from my personal ANZ bank Visa Credit which is the cause of non-payment of my home mortgages.
...
47. The Receivers were discriminative towards me since only my remunerations were reversed since at the same time I had paid wages to other employees and subcontractors.
...
49. The Unlawful appointment of the Administrators... appointed to the Jeff Manny Group of Companies is the cause of non payment of my home mortgages.
50. The Unlawful behaviour of the Administrators... appointed to the Jeff Manny Group of Companies is the cause of non-payment of my home mortgages by none informing me of the meetings of creditors.
51. The Receivers of ANZ bank has confiscate my office and all of my home loan documents at 64-66 Oatley Court Belconnen ACT 2616 for non payment of the rent. Receivers knew that Landagency Pty Ltd is a creditor of the Second, Forth, Fifth and Sixth Defendants. There are lost of money outstanding to the Landagency (Seventh Defendant) by the Receivers and companies under Receivership (Fourth, Fifth and Sixth Defendants) for the rent and work rendered by the Second, Fourth, Fifth and Sixth Defendants. I have reported the breaking entry and thief of the Receivers of ANZ bank to the Australian Federal police in the ACT and waiting for outcome of my complaint which has put me in an awkward position to be able to defend my home loan case (SC 746 of 2011) against ANZ bank.
…
53. The termination of Landagency Pty Ltd (Seventh Defendant) by ...[the Receivers] had detrimental effects on the Jeff Manny Group of Companies and cash flow of the Landagency Pty Ltd to be able to pay me to pay my home mortgage.
54. The unlawful termination of property management of the contract of the Land agency Pty Ltd with 3 companies under Receivership has detrimental effect in my cash flow which made me unable to pay for my home mortgages payments to the ANZ bank.
55. The unlawful unpayment of property management fees of the contract of the Landagency Pty Ltd with the 3 companies under Receivership have detrimental effect in my cash flow which made me unable to pay for my home mortgages payments to the ANZ bank....
59. The fire sell of all the properties of the companies under Receivership had detrimental effect of losing all my equities in the assets of the companies under receivership.
60. The unlawful fire sale of properties of 3 companies under Receivership which had the value of the properties were at least $22 million with goodwill of $10 million on top of the value of the properties with only debt of around $11 million have detrimental effect in my cash flow which made me unable to pay for my home mortgage payments to the ANZ bank.” (sic)
These are not all of the allegations which include the Receivers and Administrators. There are a number of allegations which are directed to both the ANZ as well as one or other or both of the Receivers and Administrators. However the allegations extracted above are sufficient to indicate that the nature of the pleading is such that it, most fundamentally, fails to articulate the relevant material facts. Rather, it states a series of conclusions. The material facts on which those conclusions are based are not disclosed. Nor is there any understandable link between the pleaded statements and an entitlement to any of the relief which is listed under the heading “Remedies”. Those paragraphs provide:
83. The ACT Supreme Court to declare that foreclosures of Jeff Manny group of companies were not necessary was not the best action to be taken by the ANZ bank, negligent and it was an abuse of the process which has resulted large losses to me and my group of companies.
84. The cancellation of the Landagency Pty Ltd is illegal, unnecessary and detrimental to the asset realisations of the First, fourth, Fifth, Sixth and Seventh Defendants
85. The ACT Supreme Court was in default of a number of Corporation ACTs, trade practices ACT 1974, Consumer laws, Human Rights ACT 2004 and other Australian laws as they have been explain thoroughly in my affidavit of 30 Jan 2013 in the matter of SC 746 of 2011.
86. Reinstating all the properties of the First, Fourth, Fifth, Sixth and Seventh Defendants. AA the foreclosures of the ANZ bank (Plaintiff) never occurred.
87. If Reinstating all the properties of the First, Fourth, Fifth, Sixth and Seventh Defendants is not possible then in lou (instead) of properties an amount of $26.5 million being losses incurred by the First, Fourth, Fifth, Sixth and Seventh plus 2 years of loss of income and pain and suffering beared by the First Defendants and his family.
88. Or as the court finds fit to award the losses to the First, Fourth, Fifth, Sixth and Seventh Defendants.
89. More remedies and ground of remedies have been brought in my affidavit of 30 Jan 2013 and Application in Proceedings of 1 Feb 2013 in the matter of SC 746 of 2011.
90. The money has been taken from St George Bank which was around dollars $50K and $10K from my Visa personal credit card account to pay to me immediately to stop me and my family gets disintegrated.” (sic)
Clearly enough these claims for relief are, in many respects, not understandable. They fail to identify against which of the three other parties the relief is sought. It is impossible to work out which remedies relate to the 52 paragraphs of pleadings in the earlier section.
Mr Manny said he wished to amend his counterclaim and correct any failings that it had. He said that he was now in a better position to properly formulate his claims. He did not, however, provide either by way of a formal application for amendment or otherwise, any proposed new pleading which he would wish to file.
In these circumstances it is clear that, in so far as the counterclaim contains allegations and claims for relief directed against the Receivers or the Administrators, it must be struck out. It would clearly be inappropriate simply to give leave to Mr Manny to file an amended counterclaim when the form of that counterclaim was not disclosed.
Although the Receivers and Administrators did not rely upon the ground in r 425 (1)(b) namely that the pleadings may “tend to prejudice, embarrass or delay the fair trial of the preceding” and positively disavowed reliance upon that ground, I would have also struck out the pleadings on that basis because, in my view, the pleadings were unintelligible, ambiguous or so imprecise in their identification of the alleged material facts that the other parties were deprived of proper notice of the real substance of the counterclaim. In a case such as the present one there is clearly a significant overlap between the reasonable cause of action ground in r 425(1)(a) and the prejudice, embarrass delay ground in r 425(1)(b). Although there will be cases where the grounds are clearly discrete, this was not one of them.
Where the Court makes an order that a pleading or part of a pleading be struck out it may also make any other order it considers appropriate including an order staying or dismissing the proceeding or entering judgment: see rule 425(3).
In the present case, without attempting to be comprehensive, the complaints which Mr Manny has about the conduct of the Receivers and Administrators appear to include:
a) A complaint that the Receivers and the Administrators were not properly appointed.
b) A complaint that the Receivers failed to pay for services rendered by Mr Manny or Landagency Pty Ltd and to pay rent due to Landagency Pty Ltd by JK3L Pty Ltd, Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd.
c) A complaint that the Receivers behaved somehow unlawfully and behaved unlawfully towards Landagency Pty Ltd.
d) A complaint that the disclaimer of the contract between Landagency Pty Ltd and JK3L Pty Ltd was unlawful or negligent or an “abuse of the process”;
e) A complaint that the Receivers acted unlawfully in removing money from his Visa credit card account.
f) A complaint that the Administrators behaved unlawfully by not informing him of one or more meetings of creditors.
g) A complaint about the lawfulness of the Receivers taking possession of his office and documents.
h) A complaint that the termination of the property management agreement between Landagency Pty Ltd and three companies under Receivership and the non-payment of management fees alleged to be due was unlawful and caused him to be unable to pay his home mortgage;
i) A complaint that the Receivers sold all of the properties at an undervalue either by failing to properly maintain them, not selling them in a tenanted state or in some other way.
It may be that Mr Manny is able to formulate a coherent cause of action. based either in tort or on the ground of some statutory or other duty owed to him or one or other of the companies of which he was previously in control which gives rise to a claim for relief which he, or the company, is entitled to pursue. Except in relation to the validity of the appointments issue which has already been determined. It could not be said with any certainty at this stage that it will be impossible for Mr Manny to articulate any cause of action relating to these areas of complaint. As I understood it, neither the Receivers nor the Administrators submitted as much although the Administrators did submit that it was unlikely that he would be able to formulate a cause of action against them because, as a result of the Receivers having control of all of the property of the companies, the Administrators have had only a very limited role. Notwithstanding this, in my view it will be appropriate to give Mr Manny a further opportunity to articulate his claims as against the Receivers and Administrators. Precisely how this is done in the light of the pending application by the ANZ for summary judgment will be a matter which I address below.
Frivolous or vexatious – r 425(1)(c)
The second basis on which it was said that the claim should be struck out was on the basis that it was frivolous or vexatious. The Receivers in the Administrators relied upon the decision in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 in which Justice Roden said that proceedings are “properly to be regarded as vexatious if irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.” They relied upon the decision in Re Cameron [1996] 2 Qd R 218 at 220 for the proposition that a proceeding is vexatious where, relevantly, there is a lack of reasonable grounds for the claim, a repetition of allegations which have already been rejected, persistent attempts to use the court processes to circumvent its decisions, and the harassment or annoyance of those subject to litigation which lacks a reasonable basis.
Notwithstanding that in my view the pleadings are obviously defective, I am not satisfied, except in one respect, that they meet the test articulated in the authorities relied upon by the Receivers and Administrators. Whilst it is clear from the history that I have recited above that Mr Manny is a persistent litigant, in certain respects, he has not had the merits of his claims relating to the matters I have identified above determined in the court. Whilst his claims are not properly articulated and may, ultimately be proved to be without substance, they cannot be said at this stage to be utterly hopeless. The one respect in which the claims might be considered frivolous or vexatious is in relation to the claims relating to the validity of the appointments of the Receivers and Administrators. Those claims are most appropriately addressed as an abuse of process and I do so later in these reasons. As a consequence I would not strike out the pleadings on the grounds that they are frivolous and vexatious.
Rule 462
The third basis for the application was that the counterclaim did not satisfy the requirements of r 462 of the Court Procedures Rules because there was not a sufficient connection between the relief sought in the counterclaim and the original subject matter of the proceedings brought by the ANZ. I do not accept that the pleadings fall foul of rule 462. Rule 462 provides:
(1)A defendant to a proceeding may make a counterclaim against a person other than a plaintiff (whether or not the person is already a party to the proceeding) if—
(a)the plaintiff is also made a party to the counterclaim; and
(b) either—
(i) the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or
(ii)the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding.
It will be apparent that the counterclaimant must demonstrate either that the claims made in the counterclaim seek relief “relating to or connected with the original subject matter of the proceeding” or must allege that “the other person is liable with the plaintiff for the subject matter of the counterclaim”. Although, because of the defects in the pleading outlined above, it is not truly possible to identify the material facts relied upon, it is clear that a number of the paragraphs allege that the ANZ and the Administrators and the Receivers are responsible for the conduct in question. Thus, as a matter of form, the counterclaim alleges in a number of paragraphs that the ANZ is liable with the Receivers and Administrators for the subject matter of the counterclaim, and is hence within the scope of rule 462(1)(b)(i). Further, insofar as it is possible to determine what relief Mr Manny is seeking against one or other or a combination of the plaintiff, the Receivers and the Administrators there does appear to be relief “relating to or connected with” the original subject matter of the proceeding. Having regard to the currently low level of intelligibility of the pleadings I should not be taken as expressing any final view on this issue. Suffice to say, at this stage I would not strike the counterclaim out because of a failure to satisfy the requirements under rule 462.
Abuse of process
Finally, the Receivers and Administrators submit that the current pleadings constitute an abuse of the Court’s process. That is for two reasons. The first is that some of the allegations made in the current proceedings are that the appointment of the Receivers or Administrators was invalid or unlawful. They submit that that issue was dealt with by Master Harper in his decision in Jeff Manny & Ors v Anthony Sims & Ors [2011] ACTSC 58 which was affirmed by the Court of Appeal: Jeff Manny v Anthony Sims & Stephen Parbery from PPB Advisory and ANZ Bank Ltd and McGrathnicol [2013] ACTCA 9. The second is that in so far as there are complaints about the conduct of the Receivers and Administrators, Mr Manny has brought and is maintaining actions in both the Magistrates Court and in the ACT Civil and Administrative Tribunal which make the same allegations. It is submitted that to do so amounts to an abuse of process of the Court.
In relation to the first point, I accept that Mr Manny is precluded by an issue estoppel from relitigating the validity of the appointment of the Receivers and Administrators in the current proceedings, those issues having been matters in issue which were determined by Master Harper in the course of his earlier decision: see [2011] ACTSC 58 at [30] and [31]. This was identified by Acting Chief Justice Refshauge in his decision: [2012] ACTCA 40 at [36]. This would provide an additional basis for striking out paragraphs 41 and 49 of the counterclaim.
In relation to the second point, in December 2012 Mr Manny commenced by originating application proceedings in the Magistrates Court. That application was brought in his own name as well as in the name of Landagency Pty Ltd. It sought relief directed to the ANZ as well as the Receivers. The orders sought on the grounds for those orders were not intelligibly set out in the Originating Application. The orders sought were:
1. Remove occupation of the Receivers from my leased premises
2. Hand over all my stolen documents
3. Hand over all office furniture and goods
4. Pay all the damages
5. Payback $10,000 taken from my personal ANZ bank credit card account6. Any other orders that the court considers appropriate.
As I have said, the grounds for this relief are not very intelligible. No statement of claim was filed at the time of commencing proceedings and, as I understand it, no statement of claim has been filed since. As a consequence, it is difficult to work out precisely what issues are sought to be litigated in those proceedings and hence, difficult to work out the extent to which there is an overlap with that which is alleged the current proceedings. However, in submissions, Mr Manny has said that he would discontinue the Magistrates Court proceedings.
The proceedings in the ACT Civil and Administrative Tribunal are brought by AGL ACT Retail Investments Pty Ltd trading as ACTEW AGL. It appears that ACTEW AGL is seeking to recover a debt to it. In response, by third party notice dated 31 March 2013, Mr Manny has joined the Receivers, the ANZ and the Administrators to the proceedings and claimed against them that they should pay the amount to ACTEW AGL and that the ANZ or the Receivers pay him $10,000 removed from his ANZ Bank Visa credit card. Mr Manny said that he applied to have the proceedings transferred from ACAT into the Supreme Court but that had not occurred.
It is clear that it is prima facie vexatious and an abuse of process of the court to maintain two extant civil actions where one will lie: Moore v Inglis (1976) 9 ALR 509. This rule applies whether or not two proceedings are in separate courts or in one. It applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. The fact that the parties may not be identical, or the relief different, does not necessarily disentitle a party from relief under this principle: Moore v Inglis. The principles to be applied are usefully summarised in the decision of Robson J in Re AWB Ltd (No 10) (2009) 76 ACSR 181 at [264].
The first in time proceedings are those in the ACT Magistrates Court. It is those proceedings which Mr Manny has clearly indicated that he will discontinue. The claims in the ACT Civil and Administrative Tribunal post date the filing of the amended defence and counterclaim in the present matter. In my view it would clearly be an abuse of this Court’s process to maintain a claim in this Court if that was subject to proceedings in the Magistrates Court. It is not so clear that the subsequent commencement of a claim in the Tribunal would amount to an abuse of this Court’s process but rather would appear to be prima facie an abuse of the Tribunal’s process. In the light of the indications by Mr Manny that he proposes to discontinue the Magistrates Court proceedings and the fact that I am striking out substantial parts of his counterclaim on other grounds, I propose not to grant any additional relief on the separate ground of there being an abuse of this Court’s process. I indicate however that in the event that the proceedings in the Magistrates Court brought by Mr Manny are maintained then I would consider the maintenance of substantially similar claims in this Court to constitute an abuse of process.
Summary judgment
Finally, both Receivers and Administrators have submitted that summary judgment should be given in their favour. Substantially for reasons that I have outlined in relation to rule 425(3) I am not satisfied that I should summarily dispose of the proceedings. Whilst Mr Manny has very considerable difficulties in bringing his claim, which extend beyond the difficulties associated with being unrepresented and attempting to litigate in a technically complicated area, I am not satisfied that the underlying case has been demonstrated to be hopeless. It may be that it is possible to plead a cause of action against the Receivers and Administrators arising out of the transactions that have occurred. As a consequence I have declined to enter summary judgment against the defendant in favour of the Receivers and Administrators.
Orders
The formulation of the strike out orders in the current matter are somewhat complicated by the fact that there is an outstanding application for summary judgment against Mr Manny by the ANZ which is due to be heard on 27 June 2013. The ANZ was not represented for the purposes of these applications and I will not make any order which will prejudice the capacity of the ANZ to make its application. Therefore I propose to make orders striking out only those portions of the counterclaim which can be clearly identified as relating to the Receivers and Administrators. As indicated above, I do propose to permit the defendant to have a further opportunity to attempt to formulate his claims against the Receivers and Administrators. That should be done by requiring the defendant to seek the Court’s leave to file a further amended counterclaim against the Receivers and Administrators. However, in my view any directions relating to that process should only be made after the ANZ has had the opportunity to be heard and, most likely, after the hearing of its application for summary judgment.
Mr Roser who appeared for the Receivers provided me with a document reproducing paragraphs 30 through to 90 of the defendant’s counterclaim illustrating those portions of the paragraphs which can be identified as relating to the Receivers and Administrators. It was entitled “Relief sought by Sims and Parbery re Amended Counterclaim”. The paragraphs which relate to the Receivers and Administrators have been struck out are those listed earlier in these reasons. There are also a number of other paragraphs which include allegations that the plaintiff along with one or other or both of the Receivers and Administrators did things and in those paragraphs the references to the Receivers and Administrators have been struck out. The paragraphs in relation to which that applies are paragraphs 32, 48, 52, 55, 56, 57, 58, 61, 62, 63, 64, 67, 69, 70, 72, 74, 81. The whole of paragraph 84 is also struck out as it appears to relates to the conduct of the Receivers or Administrators or both. Mr Carmody who appeared for the Administrators also submitted that these were the relevant parts of the claim to be struck out. I will make an order striking out those parts of the counterclaim. Given that the Receivers and Administrators were substantially successful in the application in my view it is appropriate that Mr Manny pay their costs of the application.
Therefore the orders that I will make are:
1. Those portions of the amended defence and counterclaim dated 7/2/13 shown as struck through in the document entitled “Relief sought by Sims and Parbery re Amended Counterclaim” be struck out.
2. The defendant pay the costs of and incidental to the applications of Anthony Sims and Stephen Parbery, and of Shane O’Keefe and Murray Smith filed 19 and 22 February 2013 respectively.
3. That the proceedings be listed for any other consequential orders and directions on 27 June 2013.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Mossop.
Associate:
Date: 14 June 2013
Counsel for the defendant: The defendant appeared in person.
Solicitor for the first defendant
to the amended counterclaim: Mr MRW Roser of Ashurst Australia
Solicitor for the second defendant
to the amended counterclaim: Mr MS Carmody of Dibbs Barker
Counsel for the plaintiff: The Plaintiff did not appear.
Date of hearing: 7 June 2013
Date of judgment: 12 June 2013
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