Manny v Commonwealth of Australia; Manny v University of Canberra
[2023] ACTSC 160
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Manny v Commonwealth of Australia; Manny v University of Canberra |
Citation: | [2023] ACTSC 160 |
Hearing Date: | 24 March 2023, 14 April 2023 |
DecisionDate: | 29 June 2023 |
Before: | McWilliam J |
Decision: | See [92] |
Catchwords: | CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – joinder application – whether parties capable of being joined to the proceedings in circumstances where the proposed plaintiffs are companies that have been de-registered or are in liquidation – where joinder of parties otherwise not necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding – leave refused |
| CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – strike out application – whether statement of claim discloses reasonable cause of action – where pleading fails to comply with the procedural rules to such an extent that it fails to expose the case the party intends to run – whether leave to re-plead should be given – where causes of action sufficiently disclosed – leave to re-plead granted | |
Legislation Cited: | A New Tax System (Australian Business Number) Act 1999 (Cth) s 41 A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 184-1 University of Canberra Act 1989 (ACT) ss 4, 6 |
Cases Cited: | Aldous v State of New South Wales [2018] NSWCA 261 Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; 71 NSWLR 577 Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 Manny v David Lardner & Associates [2018] ACTSC 159 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 |
Parties: | SC 492 of 2022 Jeff Manny ( Plaintiff) Commonwealth of Australia (Defendant) SC 513 of 2022 Jeff Manny ( Plaintiff) University of Canberra ( Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) W Sharwood ( Defendants) |
| Solicitors Self-represented ( Plaintiff) Moray & Agnew ( Defendant in SC 492 of 2022) Thompson Cooper Lawyers (Defendant in SC 513 of 2022) | |
File Numbers: | SC 492 of 2022 SC 513 of 2022 |
McWILLIAM J:
The first plaintiff, Mr Jeff Manny, has a number of proceedings before the Court. In the two that are presently the subject of three interlocutory applications, Mr Manny is seeking damages of many millions of dollars against the Commonwealth of Australia, for conduct of the Australian Federal Police (Police), and against the University of Canberra (University) in respect of a degree that Mr Manny was undertaking over the period 2018 to 2020.
The claim against the Commonwealth of Australia (proceedings no. SC 492 of 2022) relates to an incident in December 2022, where Mr Manny (the plaintiff) alleges he was the victim of an attack by six men who were said to have assaulted him and taken his bicycle.
He rang the Police on the emergency 000 number and was told that the Police would contact him or attend the place where Mr Manny claims he then hid for an hour, a short distance from the oval where he had encountered the six men. The Amended Statement of Claim then alleges the Police did not attend and did not contact him. When Mr Manny went to the police station the next day to report the incident, he was told (in essence) that it would be unlikely the investigation could be taken any further given the passage of time since the incident had occurred. He claims that the Police discriminated against him, showed “apprehended bias” towards him, and that this latest incident was a continuation of a pattern of conduct that had occurred since 2004.
Mr Manny’s amended statement of claim seeks $38 million in damages from the Commonwealth (as part of a larger sum of damages claimed against other entities who are not parties to these proceedings), arising from what is said to have been a breach of statutory duty and breach of duty of care. The statutory duty relied upon is not specified. The quantum of the figure is based on a lost business and property asset portfolio many years ago, which itself arose from the collapse of a number of businesses and companies associated with Mr Manny, which are identified below.
The claim against the University (proceedings no. SC 513 of 2022) relates to the period of time when Mr Manny was enrolled as a student in one or more subjects at the University. The claim refers to Mr Manny undertaking a post-graduate degree.
The pleading commences by referring to the obligations on the University to deal with students fairly and lawfully. It is claimed that during the second semester of 2018, Mr Manny had a meeting with the course convenor, where he was encouraged to withdraw from the course. When he did not withdraw from the course, the course convenor failed him. It is then claimed that in 2020, Mr Manny was undertaking a different course with the same course convenor. He had a disagreement about a research topic with the convenor. Following that disagreement, in January 2021, the University issued a notice of misconduct to the plaintiff, required him to withdraw from all courses, and refused to permit him to complete his degree.
Mr Manny then claims that the course convenor’s conduct was related to a view she had about whistle blowers and that somehow the orders made in an earlier court proceeding in 2010 (discussed further below) influenced the conduct of convenor and the University. He again refers to there being apprehended bias.
The damages claimed against the University are a sum of $9 million. As with the Commonwealth proceeding, the quantum of the loss appears to relate to losses incurred by the businesses and companies associated with him and future earning opportunities that are said to have been lost because of the conduct of people other than the University. The link pleaded, under the heading “Damages”, is that the University prevented Mr Manny from learning more about professional negligence through his degree, which in turn affected his ability as a self-represented litigant to run his court proceeding no. SC 527 of 2016 (the professional negligence proceeding).
Applications for Determination
Mr Manny has filed an application in proceeding in each matter, dated 12 January 2023. Each application was opposed.
In both proceedings, Mr Manny is seeking to join the following companies for whom he is or was the director, and a business name associated with him and those corporate entities:
(a)Second plaintiff: Jeff Manny Constructions Pty Ltd (ACN 083 451 870)
(b)Third plaintiff: JK3L Pty Ltd (ACN 081 795 128)
(c)Fourth plaintiff: Lonagann Pty Ltd (ACN 099 576 904)
(d)Fifth plaintiff: Landagency Pty Ltd (ACN 135 024 458) (Landagency)
(e)Sixth plaintiff: Jeff Manny Pty Ltd (ACN 097 755 916)
(f)Seventh plaintiff: Canwork Pty Ltd (ACN 129 706 887)
(g)Eighth plaintiff: JM and JK Pty Ltd (ACN 119 209 577)
(h)Ninth plaintiff: Jeff Manny Group (Registration Number F00121059)
In each application, Mr Manny has sought leave to represent the companies, rather than a solicitor representing them as ordinarily required by r 30(4) of the Court Procedures Rules 2006 (ACT) (Rules).
In each application, Mr Manny also sought an order setting aside orders made by Justice Gray on 11 June 2010, in Supreme Court proceeding SC 601 of 2005 (defamation proceeding). As indicated to Mr Manny during the hearing, that is not relief that can be sought collaterally by way of an application in proceeding in a separate proceeding. There is also a recent decision dealing with the same order sought by Mr Manny, namely Manny v Shiels [2022] ACTCA 22. The effect of that decision is explained more fully below.
There is a third application for determination, filed 15 March 2023 by the University. It seeks that the Originating Claim and Statement of Claim be struck out with no leave to replead, on the basis that no reasonable cause of action is disclosed, and that the pleadings are otherwise prejudicial, embarrassing, and an abuse of the process of the Court.
The three applications were heard together due to the overlapping issues in relation to the involvement and representation of the companies. The parties agreed that it was convenient to deliver a single judgment dealing with the relief sought in each proceeding.
The corporate plaintiffs and proposed corporate plaintiffs
A number of difficulties have been raised about the corporate status of the various corporate plaintiffs or proposed plaintiffs. Mr Manny is now a director of only one of the companies named: Landagency, which is both a registered company and currently not in liquidation.
The second, third and fourth plaintiffs are each a company in liquidation, with the liquidator appointed for each being Mr James Downey.
The six, seventh and eighth plaintiffs are all deregistered.
The ninth plaintiff, “Jeff Manny Group”, is a business name, not a separate legal entity. On the evidence before the Court, the ASIC business names registry indicates that the business name and the registration number supplied has been cancelled.
In respect of the companies in liquidation, I raised with Mr Manny during the hearing that before the issue of joinder and representation arose, there was an additional requirement for leave to be given to commence derivative proceedings on behalf of those companies under ss 236, 237 or 447A of the Corporations Act 2001 (Cth) (Corporations Act). This had not been sought prior to the filing of the claim against the University.
Although that order was not formally sought in either application in proceeding that was filed, Mr Manny confirmed that is what he was seeking to do as part of his applications and I have considered the issue below, with the acquiescence at the hearing of the Commonwealth and the University.
It has been convenient to group together a number of the plaintiffs in considering whether they can be joined to the proceedings. The reasoning that follows addresses joinder, but the findings will also be relevant to the University’s strike out application.
The proposed joinder of the sixth, seventh, eighth and ninth plaintiffs
Dealing first with the sixth to ninth plaintiffs, neither a deregistered company nor a business name has any separate legal personality.
A company ceases to exist on deregistration: s 601AD(1) of the Corporations Act.
A registered business name is not a legal person. It is just a name under which a person or another legal entity trades. The name is attached to an Australian Business Number, or ABN which is issued for business entities, but the name itself is not the “entity”. That can be seen from the definition of “entity” contained in s 41 of the A New Tax System (Australian Business Number) Act 1999 (Cth), which defines “entity” to have the same meaning as that given by s 184-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth):
184-1Entities
(1)Entity means any of the following:
(a) an individual;
(b)a body corporate;
(c)a corporation sole;
(d)a body politic;
e)a *partnership;
(f)any other unincorporated association or body of persons;
(g)a trust;
(h)a *superannuation fund.
Note:The term entity is used in a number of different but related senses. It covers all kinds of legal persons. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does.
...
The definition goes on to explain a number of different exclusions and how a legal person can have a number of different capacities, with the person taken to be a different entity for each capacity. However, for present purposes, what is significant is that a business name does not appear within the meaning of any of the above list.
The consequence is that neither a deregistered company or a business name is an entity capable of suing or being sued. Accordingly, the sixth to ninth plaintiffs cannot be joined to the claim against the Commonwealth or the University
In the event that Mr Manny were able to reinstate any or all of the sixth to eighth plaintiffs, the reasons applying to the second, third and fourth plaintiffs would apply.
The proposed joinder of the second, third and fourth plaintiffs
In relation to the second, third and fourth plaintiffs, they are not deregistered. Historically, they went into liquidation and were deregistered in 2016. However, on 12 July 2018, I made orders reinstating them in a separate proceeding commenced by Mr Manny: Manny v David Lardner & Associates [2018] ACTSC 159.
However, they are companies in liquidation and the liquidator is not the person seeking to join the companies to the present proceedings for the purposes of pursuing a cause of action against either the Commonwealth or the University. As such, the preliminary question is whether Mr Manny should be granted leave to bring derivative proceedings on behalf of the companies.
The applicable principles have been set out in Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 at [22]-[25]. Without repeating the authorities there set out, the Court has an equitable jurisdiction to grant leave to a person to bring a derivative proceeding in respect of a company that is in liquidation. The discretion whether to grant such leave involves the consideration of three main matters:
(a)Whether the proceedings proposed to be pursued have some solid foundation, in that they exhibit such a degree of merit as to be neither vexatious nor oppressive and to present reasonable prospects of success.
(b)The liquidator’s attitude to the question whether the proceedings should be pursued.
(c)Whether practical considerations support the initiation of the proceedings, with particular reference to financial protection of the liquidator and the estate of the company by means of indemnity and, if indicated, security.
As to the second matter, Mr Manny sought consent from the liquidator by email, who indicated in response that they have “no objection” to Mr Manny acting for these companies in proceedings.
That leaves the other two matters for more detailed consideration.
Do the proceedings against the Commonwealth have some solid foundation?
The requirement that each claim have a “solid foundation” involves, as a practical matter, that “there are reasonable prospects of success, and some tangible benefit is genuinely in prospect”: Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551; 71 NSWLR 577 at [30], cited in Re Sundara Pty Ltd [2015] NSWSC 1694 at [10]. The question whether some tangible benefit is genuinely in prospect requires consideration of whether there will be a dividend returned to creditors if the action succeeds.
In the present case, I am not satisfied that the cause of action Mr Manny seeks to bring has reasonable prospects of success in respect of any of the second, third or fourth plaintiffs, let alone that there would be some tangible benefit genuinely in prospect.
In respect of the Commonwealth proceeding, the claim that would be brought on behalf of the companies is entirely unclear from the amended statement of claim or any of the affidavits relied upon by Mr Manny in support of his application.
The concern of the companies is that they lost their asset portfolio. The pleadings allege this was caused by the asserted negligence of David Lardner Lawyers, which in turn had the consequence of the ANZ Bank appointing receivers and ultimately causing significant losses of $250 million.
Any cause of action relating to the conduct of the corporate entities’ former solicitors is the subject of the professional negligence proceeding which has been heard and determined in this court: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289. The judgment of Murrell CJ is currently under appeal, but the success or otherwise of the appeal does not affect the present proceeding brought against the Commonwealth in respect of Police conduct.
As to Mr Manny’s desire to set aside orders made by Justice Gray on 11 June 2010 in the defamation proceeding, putting to one side that this type of order was one for final substantive relief and not an appropriate issue to be dealt with as part of an interlocutory application in separate proceeding, I have given consideration to that relief sought as part of assessing whether there is any potential claim with a solid foundation by any company, against the Commonwealth.
The defamation proceeding concerned an action brought by two individuals in defamation against Mr Manny and one of the companies of which Mr Manny was the sole director at the time, Jeff Manny Pty Ltd (the proposed sixth plaintiff in the present application for joinder). The defamation action succeeded: P v Manny [2010] ACTSC 50. A cross-appeal of the judgment by Mr Manny and the company was unsuccessful: Shiels v Manny [2012] ACTCA 22; 263 FLR 61.
The genesis of that defamation action was an altercation at a karate school in Belconnen. At the time, the two plaintiffs before Justice Gray operated the karate school. One was a retired lawyer and the other was his son, and a Senior Constable in the AFP at the time. Mr Manny’s three sons were students at the karate school. After a physical altercation, Mr Manny reported the incident to the Police, claiming that he had been assaulted by the two plaintiffs. Mr Manny then wrote two letters to the Police, and it was those letters (as well as other subsequent conduct years later) that gave rise to the defamation proceedings.
So far as the Commonwealth is concerned, the only link between that earlier proceeding and the present one is that the Police were the recipients of the letters written by Mr Manny in the defamation proceeding, and the Police were called upon to investigate the alleged assault on Mr Manny and his bike in the present proceeding.
There are two reasons why this historical litigation provides no foundation for any joinder here. The first is that the earlier defamation proceeding before Gray J concerned only one of the companies, Jeff Manny Pty Ltd, and that company is currently deregistered. Given that none of the second, third or fourth plaintiffs were involved in that previous litigation, there is nothing apparent in the judgment of Gray J that could give rise to any cause of action that either the second, third or fourth plaintiff might now seek to bring related to that litigation, let alone an action with a solid foundation.
The second is succinctly captured in a judgment of Kennett J in Manny v Shiels [2022] ACTCA 22, which considered an application by Mr Manny for leave to appeal from the judgment of Gray J out of time. His Honour stated at [17]-[18]:
17.The judgment of Gray J has become merged in the judgment of the Court of Appeal: Wishart v Fraser[1941] HCA 8; (1941) 64 CLR 470, 478 (Starke J), 482–483 (Dixon J), 487 (McTiernan J), 491 (Williams J); Theiss Pty Ltd v Industrial Court of New South Wales[2010] NSWCA 252; 78 NSWLR 94, [74] (Spigelman CJ). It is the latter which now binds the parties. The judgment of Gray J is not amenable to any further appeal to this Court; nor could this Court entertain an appeal from its own judgment.
18.For these reasons, an appeal to this Court from the judgment of Gray J would be incompetent and a grant of leave would therefore be futile. Even if that were not so, the fact that Mr Manny has already commenced one appeal (in which he had the opportunity to ventilate all of the concerns he had about the proceeding before Gray J) and argued it to a final judgment would, in the absence of any suggestion of fresh evidence, be an overwhelming reason not to grant leave.
Otherwise, insofar as the Commonwealth is said to be vicariously liable for any conduct of the Police, there is no arguable claim identified which can be linked to any of the second, third or fourth plaintiffs. The amended statement of claim alleges there was “apprehended bias” in the manner in which Mr Manny was treated by Police, but:
(a)this is not of itself a cause of action known to the law; and
(b)any unsatisfactory conduct of the Police was not in relation to any direct or indirect dealings with the proposed second, third or fourth plaintiffs.
As to the first of those matters, the term “apprehended bias” is a principle applying in the context of fair decision-making, in that the exercise of a statutory power (a decision or a procedure adopted) should be free from apprehended bias (as to which, see Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11]). The principle is part of the wider obligation of natural justice in relation to the exercise of statutory power, which has a flexible quality, and differs according to the circumstances in which a power is exercised: see Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [23] and the authorities there-cited.
As to the second of those matters, it may be understandable that Mr Manny is aggrieved by what occurred and his interactions with the Police, and his substantive cause of action is a personal one brought under anti-discrimination legislation. However, I have been unable to discern even a tenuous link to give rise to any cause of action in respect of the second, third or fourth plaintiffs. While s 64B of the Australian Federal Police Act 1979 (Cth) makes the Commonwealth liable in respect of a tort committed by a member of the police, no facts giving rise to any potential tort or other action were identified either in the existing pleading, an affidavit, or in oral argument before the Court.
Do the claims against the University have some solid foundation?
In respect of the second, third and fourth plaintiffs, again no reasonable cause of action has been identified against the University. The companies cannot be said to have been students, in any way interacting with the University, during the period 2018-2021.
Any losses the companies may have sustained appear to have occurred long before Mr Manny even commenced studying at the University.
That lack of a proposed claim having any solid foundation is fatal to the application for joinder, in that on the proper application of the principles guiding the exercise of the Court’s discretion, the Court would not grant leave to bring a derivative action in either proceeding. That makes it unnecessary to deal with the second aspect of whether there was a tangible benefit to be obtained.
Whether practical considerations support the initiation of the proceedings
A separate reason telling against the exercise of the Court’s discretion to grant leave is that the practical considerations do not support the initiation of the proceedings. Assuming that a position contrary to what I have found above were established, and there was a cause of action with a solid foundation proposed, there would remain risks and potential detriment to the second, third and fourth plaintiffs, in that they will be thrust into pursuing litigation which would be highly uncertain in terms of any likely success of recovery of assets for the corporate plaintiffs. There is no evidence about the costs of the proceeding against the Commonwealth, but the corporate entities cannot simply join in an anti-discrimination claim which can only be brought by individuals. The joinder of the corporate entities as additional plaintiffs would require an additional cause of action, based in tort or breach of statutory duty. The companies are in liquidation (and therefore have no funds to pursue the litigation without external assistance) and Mr Manny is not in a financial position to give any undertaking to fund the litigation or any ultimate adverse costs order. Without any indemnity or security available, this is a separate reason fatal to any grant of leave for a derivative action.
The proposed joinder of the fifth plaintiff
The fifth plaintiff is Landagency, which is not in liquidation and is not presently deregistered. Mr Manny is the sole director and shareholder of Landagency.
Rule 210 of the Rules provides:
Each person whose presence as a party is necessary to enable the Court to adjudicate effectively and completely on all issues in dispute in a proceeding must be included as a party to the proceeding.
Rule 211 relevantly provides:
(1)Two or more people may be included as plaintiffs … in a proceeding –
(a)if –
(i) separate proceedings by or against each of them may give rise to a common issue of law or fact; and
(ii) any of the rights to relief claimed in the proceeding …arise out of the same …event or series of transactions or events; or
(b)if the court orders that they be included.
...
Under r 220 of the Rules, the Court may order that a person be included as a party to a proceeding if the person “ought to have been included as a party”, or “including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.”
Here, it cannot be said that Landagency ought to have been a party to a claim against the Police based in anti-discrimination legislation. Nor can it be said that the joinder is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding. Mr Manny may have had personal interactions with the Police extending back many years, but there is nothing to suggest that those issues have any overlap with any existing claims of Landagency, such as to make the inclusion of Landagency “necessary” in order for the court to adjudicate completely on the issues presently in dispute.
In relation to the claim against the University, again, it has not been established that Landagency ought to have been a party for the same reasons as those given for finding that there was no claim with any solid foundation that could have been brought by the second, third and fourth plaintiffs.
Accordingly, no basis has been established to join Landagency to either proceeding.
Leave for an authorised officer or employee to act for a company
As no leave has been given for the joinder of any of the registered companies, the question of leave for representation in respect of them (r 30(4) of the Rules) falls away in each proceeding.
The University’s application to strike out the claim with no leave to replead
The University’s application is brought pursuant to r 425(1) of the Rules, which is in the following terms:
425Pleadings – striking out
(1)The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading—
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c)is frivolous, scandalous, unnecessary or vexatious; or
(d)is otherwise an abuse of the process of the court.
...
The University relies in particular on paragraphs (a), (b) and (c) of the above rule. They form the issues on the application.
Is a reasonable cause of action disclosed?
The Court’s task or approach
Whether a statement of claim discloses a reasonable cause of action is a question of law: McColley v Commonwealth [2014] ACTCA 21 (McColley) at [29].
The Court looks solely at what is pleaded and assesses whether it fails to include all the elements of a cause of action: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) at [22] per French CJ and Gummow J. Their Honours went on (at [23]) to note the distinction between evidence disclosing that a party has a reasonable cause of action, and a pleading disclosing a reasonable cause of action. Where the application is for strike-out in respect of a pleading, the issue is whether there is a defect in the pleading, and if so, whether such defect can be cured. If it can be cured, then the appropriate course is usually to strike out the pleading and give an opportunity to replead the claim: see The Owners – Units Plan No 1917 v Koundouris & Anor [2014] ACTSC 269 at [40].
The Court of Appeal in McColley discussed the approach to be taken to a strike out application that alleges that a pleading discloses “no reasonable cause of action or defence” at [31]-[34]. The relevant principles were described as being conveniently set out by Jagot J in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132, with the Court of Appeal stating at [31]:
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 (West) at [9]. There is a “very high threshold”: Financial Integrity Group Pty Ltd v Farmer[2009] ACTSC 143 at [12]. There is a need for “exceptional caution” when deciding whether to order that a claim be struck out: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. A cause of action is “unreasonable” only if it is “bound to fail”: Seven Network Ltd v News Ltd (No 4) [2005] FCA 244; (2005) 214 ALR 686.
The Court of Appeal in McColley then put the test a different way, stating at [34]:
Before a claim may be struck out, it must be shown to be defective in substance and not merely in the manner in which it has been stated, and it must be “clearly untenable”: Carlisle v Filara Pty Ltd [2002] ACTSC 33 at [16].
Importantly here, and continuing the distinction made in Spencer, the question of whether a plaintiff has a reasonable cause of action is one of substance; the question whether it has been disclosed is one of procedure. Because the process of pleading one’s case is a procedural step, the Court has an obligation to take appropriate steps to ensure that self-represented litigants have sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial: Jae Kyong Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48], cited in Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [54] and more recently in Aldous v State of New South Wales [2018] NSWCA 261 at [63]. The detailed explanation of matters of procedure under the Rules has been undertaken with that obligation in mind.
The procedure required to disclose a reasonable cause of action under the Rules
The starting point is the originating claim, which must “state briefly and specifically the nature of the claim made and relief sought”: r 50 of the Rules.
The statement of claim is the “pleading” of the case (it is one of documents listed in the Dictionary to the Rules as being a pleading).
The purpose of a pleading is to expose the case the party intends to run. Properly exposing the case to be pursued has been described as falling within a party’s obligations under s 5A of the Court Procedures Act 2004 (ACT): Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 at [17].
A pleading has formal requirements under the Rules (rr 405-407). Of relevance to the pleading here are the following:
(a)The pleading must be in writing.
(b)Each matter (or allegation) must be in a separate paragraph.
(c)The paragraphs need to be numbered consecutively.
(d)If the plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately.
(e)A breach of statutory duty must be specifically pleaded (that means, the pleading must set out the provision of the statute in question and the duty under it).
(f)Negligence must be specifically pleaded.
Under r 432, if a party pleads negligence or breach of statutory duty, the particulars of the pleading must “state the facts and circumstances of the negligent act or omission or breach of statutory duty”.
That means it is not enough to allege simply that a defendant breached its duty of care or breached its statutory duty. Under that allegation, particulars of the allegation must be provided, setting out what the defendant either did or did not do, which is said to constitute the relevant breach.
Similarly, if the pleading includes a claim relying on the Human Rights Act 2004 (ACT) (HR Act), the pleading must state (r 6033):
(a)The human right that the party relies on, including –
(i)The relevant content of the right; and
(ii)Any particular aspect of the right that the party relies on; and
(b)The facts on which the party relies to assert that the HR Act applies to the proceeding; and
(c)The relief sought.
The pleading in the present case
The contents of the pleading have been broadly summarised at [5]-[8] above of these reasons.
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.
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.
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.
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.
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.
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”.
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.
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.
Further, there is enough information scattered throughout the pleading to raise the operation of the HR Act and the Racial Discrimination Act 1975 (Cth).
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.
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.
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...”
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.
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.
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.
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.
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.
Costs
Mr Manny has been unsuccessful in respect of the applications for joinder of, and leave to represent, the various corporate entities against the Commonwealth and the University. The University has also been largely successful in its own application to strike out the current pleading. I see no reason to depart from the ordinary rule that costs follow the event.
Conclusion
For the above reasons, the orders of the Court are as follows:
In proceeding no. SC 492 of 2022
(1) The application for leave to join the following as parties to the proceedings is refused:
(a)Second plaintiff: Jeff Manny Constructions Pty Ltd (ACN 083 451 870)
(b)Third plaintiff: JK3L Pty Ltd (ACN 081 795 128)
(c)Fourth plaintiff: Lonagann Pty Ltd (ACN 099 576 904)
(d)Fifth plaintiff: Landagency Pty Ltd (ACN 135 024 458)
(e)Sixth plaintiff: Jeff Manny Pty Ltd (ACN 097 755 916)
(f)Seventh plaintiff: Canwork Pty Ltd (ACN 129 706 887)
(g)Eighth plaintiff: JM and JK Pty Ltd (ACN 119 209 577)
(h)Ninth plaintiff: Jeff Manny Group (Registration Number F00121059)
(2) The application in proceeding filed 12 January 2023 is otherwise dismissed.
(3) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding.
(4) The proceeding is listed for directions before the Registrar on 31 July 2023 at 9:30am.
In proceeding no. SC 513 of 2022
(1) The application for leave to join the following as parties to the proceedings is refused:
(a)Second plaintiff: Jeff Manny Constructions Pty Ltd (ACN 083 451 870)
(b)Third plaintiff: JK3L Pty Ltd (ACN 081 795 128)
(c)Fourth plaintiff: Lonagann Pty Ltd (ACN 099 576 904)
(d)Fifth plaintiff: Landagency Pty Ltd (ACN 135 024 458)
(e)Sixth plaintiff: Jeff Manny Pty Ltd (ACN 097 755 916)
(f)Seventh plaintiff: Canwork Pty Ltd (ACN 129 706 887)
(g)Eighth plaintiff: JM and JK Pty Ltd (ACN 119 209 577)
(h)Ninth plaintiff: Jeff Manny Group (Registration Number F00121059)
(2) The application in proceeding filed 12 January 2023 is otherwise dismissed.
(3) The statement of claim is struck out.
(4) 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.
(5) The plaintiff is to file any such amended statement of claim and any amended originating claim on or before 28 July 2023, or such further date as agreed between the parties or otherwise permitted by the court.
(6) The plaintiff is to pay the defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceeding.
(7) The proceeding is listed for directions before the Registrar on 31 July 2023 at 9:30am.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: 29 June 2023 |
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