Jeff Manny v Anthony Sims and Stephen Parberry
[2014] ACTSC 183
•31 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | JEFF MANNY v ANTHONY SIMS and STEPHEN PARBERRY & ANOR |
Citation: | [2014] ACTSC 183 |
Hearing Date(s): | 22 May 2014 |
DecisionDate: | 31 July 2014 |
Before: | Burns J |
Decision: | The present appeal is competent. The respondent’s application be dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL – appeal from the Master – appeal before a single judge – whether an order is interlocutory or final |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1147 Supreme Court Act 1933 (ACT) s 9(2) |
Cases Cited: | Bozson v Altrincham Urban District Council [1903] 1 KB 547 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 Hall v Nominal Defendant (1966) 117 CLR 423 Re Page; Hill v Fladgate [1910] 1 Ch 489 Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 Wickstead v Browne (1992) 30 NSWLR 1 |
Parties: | Jeff Manny (Appellant) Anthony Sims and Stephen Parberry (First Respondent) Shane O’Keefe and Murray Smith (Second Respondent) |
Representation: | Counsel: Self-represented (Appellant) J N Bird (First Respondent) Mr S Carmody (Second Respondent) |
| Solicitors: Self-represented (Appellant) Ashurst Australia (First Respondent) Dibbs Barker (Second Respondent) | |
File Number(s): | SC 746 of 2011 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Master Mossop Date of Decision: 23 December 2013 Case Title Australia and New Zealand Banking Group Limited v Jeff Manny & ors Citation: [2013] ACTSC 261 Court File Number(s): SC 746 of 2011 |
Mr Jeff Manny, who for convenience I will refer to as the appellant, lodged a Notice of Appeal on 7 January 2014 in which he seeks to appeal from the orders of the Master made on 23 December 2013 dismissing certain applications lodged by him in proceedings SC 746 of 2011, and entering judgment for the defendants on his counterclaim. The appellant has lodged a Notice of Appeal in the Supreme Court appealing from the decisions of the Master to the Court constituted by a single judge. The defendants to the appellant’s counterclaim in SC 746 of 2011, who for convenience I will refer to as the respondents, have now applied to have the appellant’s appeal struck out as incompetent, at least to the extent that it purports to appeal the decision of the Master entering judgment for them on the counterclaim.
The history of the proceedings which came before the Master is set out in his decision of 23 December 2013. The primary proceedings involve the claim by the Australia and New Zealand Banking Group Ltd (ANZ) for a debt owed by the appellant and for recovery of possession of land in the suburb of Flynn in the Australian Capital Territory. The appellant filed a counterclaim in those proceedings on 7 February 2013 which had the effect of including the liquidators and receivers (the respondents in the present proceedings) of a number of companies of which the appellant is a director as parties in the proceedings.
In February 2013 the respondents filed applications seeking orders that the counterclaim filed by the appellant on 7 February 2013 be struck out and seeking orders in relation to summary judgment. On 12 June 2013 the Master struck out the appellant’s counterclaim in so far as it related to the liquidators and receivers: Australia and New Zealand Banking Group Limited v Manny [2013] ACTSC 116.
The ANZ also made an application to strike out the counterclaim and seeking summary judgment. On 26 July 2013 the Master struck out the balance of the appellant’s counterclaim, with the result that there was no counterclaim on foot in the primary proceedings. The Master also entered summary judgment for the ANZ in relation to its claim for possession of the property at Flynn: Australia and New Zealand Banking Group Limited v Manny (No 2) [2013] ACTSC 143. The Master gave the appellant an opportunity to re-plead his counterclaim, but directed that pleadings for any counterclaim be filed only with leave of the Court.
The appellant appealed against the orders made by the Master on 26 July 2013, but that appeal was dismissed: Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236.
On 19 September 2013 the appellant lodged an application seeking leave to file a revised counterclaim. On 31 October 2013 the Master dismissed that application, and ordered the appellant to pay the respondents’ costs. The Master made further orders relating to the filing of any further application for leave to file an amended pleading for the counterclaim. He also adjourned an application by the liquidators to be removed as parties to the proceedings.
On 27 November 2013 the appellant applied for leave to file a revised pleading for a counterclaim. On 9 December 2013 the appellant also lodged an application seeking leave to join five additional parties to the proceedings. These applications were heard by the Master on 13 December 2013, and on 23 December 2013 his Honour made the following orders:
· the [appellant’s] application dated 27 November 2013 is dismissed;
· the [appellant’s] application dated 9 December 2013 is dismissed;
· Judgement is entered for ANZ and [the respondents] against [the appellant] on the [appellant’s] counterclaim; and
· [the appellant] is to pay the costs of the ANZ and [the respondents].
By virtue of s 9(2) of the Supreme Court Act 1933 (ACT), an appeal to a single judge from a decision of the Master lies only from an interlocutory order. An appeal with respect to a final order only lies to the Court of Appeal. The respondents’ objection to the competence of the appellant’s appeal is based upon the proposition that the orders made by the Master on 23 December 2013 are final orders, and as such any appeal lies only to the Court of Appeal.
The test for determining whether orders are final or interlocutory is well settled, although application of the test can prove problematic. In Bozson v Altrincham Urban District Council [1903] 1 KB 547 the English Court of Appeal (The Earl of Halsbury LC, Lord Alverstone CJ and Sir F. H. Jeune P) held that to determine whether an order was final or interlocutory, it was necessary to determine whether the judgment or order, as made, finally disposed of the rights of the parties. If it did, then the judgment or order was final; if not, it was interlocutory. This test has been steadfastly applied in this country: see, for example, Hall v Nominal Defendant (1966) 117 CLR 423.
It is common ground between the parties that in making the order on 23 December 2013 to enter judgement for the respondents, the Master was exercising the power to enter summary judgment granted pursuant to r 1147 of the Court Procedures Rules 2006 (ACT). The question for determination, therefore, is whether such an order is a final or interlocutory. The authorities addressing this question are not always consistent. A number of previous authorities have held that orders for summary dismissal of proceedings on the ground that no reasonable cause of action is disclosed, or that a party had no reasonable prospect of success, were interlocutory orders: see Re Page; Hill v Fladgate [1910] 1 Ch 489; Wickstead v Browne (1992) 30 NSWLR 1. On the other hand, the Full Court of the Supreme Court of Western Australia (Hale, Burt, Wickham JJ) in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 held that an order dismissing an action after striking out a statement of claim as disclosing no reasonable cause of action was a final order as “nothing could be more final than a dismissal of the action” (at 149).
With the greatest of respect to the decision of the Full Court in Florida Investments Pty Ltd vMilstern (Holdings) Pty Ltd, I think that it was decided against the weight of authority. The test to be applied is one which examines whether the judgment or order finally disposes of the rights of the parties, and not simply disposes of the proceedings. As Windeyer J said in Hall v Nominal Defendant at 443:
It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
I have come to the conclusion that the order made by the Master entering judgment for the respondents on the counterclaim was an interlocutory order. As the proceedings on the counterclaim were not determined on their merits no question of estoppel or res judicata arises so as to prevent the appellant from commencing fresh proceedings on the same grounds: Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572. As such, it is clear that the orders made by the Master did not finally dispose of the rights of the parties in the matter the subject of the counterclaim.
I am satisfied that the present appeal is competent, and the respondents’ applications will be dismissed.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 31 July 2014 |
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