Manny v Commonwealth of Australia (No 2)
[2025] ACTSC 146
•14 April 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Manny v Commonwealth of Australia (No 2) |
Citation: | [2025] ACTSC 146 |
Hearing Dates: | 13 March 2024, 4 April 2025 |
Decision Date: | 14 April 2025 |
Before: | McWilliam J |
Decision: | The proceedings are dismissed. |
Catchwords: | PRACTICE & PROCEDURE – INTERLOCUTORY APPLICATION – strike out and summary dismissal – competing application for summary judgment – whether proceedings constitute abuse of process – whether proceedings disclose reasonable cause of action – where claims sought to be raised previously litigated and determined – where allegations made against non-parties – where no arguable claim otherwise able to be discerned – summary dismissal ordered |
Legislation Cited: | Australian Federal Police Act 1979 (Cth) s 64B Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PO Competition and Consumer Act 2010 (Cth) Sch 2, s 18 Court Procedures Rules 2006 (ACT) rr 425, 1146, 1147 Crimes Act 1900 (ACT) ss 114D, 274, 399 Fair Trading (Australian Consumer Law) Act 1992 (ACT) Pt 2 Human Rights Act 2004 (ACT) ss 27A(3)(a), 40, 40A, 40C Racial Discrimination Act 2004 (Cth) ss 18C, 18D |
Cases Cited: | Batistatos v Roads and Traffic Authority(NSW) [2006] HCA 27; 226 CLR 256 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hill v Chief Constable of West Yorkshire [1989] AC 53 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12 Manny v Shiels [2022] ACTCA 22 McColley v Commonwealth [2014] ACTCA 21 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Mensinga v DPP [2003] ACTCA 1 Owners – Units Plan No 1917 v Koundouris [2014] ACTSC 269 P and W v Manny and Anor [2010] ACTSC 50 Picos v Australian Federal Police [2015] FCA 118 Shiels v Manny and Manny Pty Ltd; Manny v Shiels [2012] ACTCA 22 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 State of New South Wales v Heins [2005] NSWCA 258 State of New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 State of New South Wales v Spearpoint [2009] NSWCA 233 State of NSW v Tyszyk [2008] NSWCA 107 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Walton v Gardiner (1993) 177 CLR 378 Young v Hones [2014] NSWCA 337 |
Parties: | Jeff Manny ( Plaintiff) Commonwealth of Australia ( Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) W Sharwood ( Defendant) |
| Solicitors Self-represented ( Plaintiff) Moray & Agnew ( Defendant) | |
File Numbers: | SC 492 of 2022, SC 146 of 2023, SC 262 of 2023, SC 263 of 2023, SC 19 of 2024, SC 20 of 2024, SC 21 of 2024 |
McWILLIAM J:
1․Mr Manny (the plaintiff) has commenced 14 separate proceedings against the Commonwealth of Australia (Commonwealth), the Australian Capital Territory (Territory), the Australian Postal Corporation and the University of Canberra. In each case, relief of many millions of dollars is sought in damages. This judgment deals only with seven of the eight proceedings involving the Commonwealth as defendant.
Proceedings brought against the Commonwealth
2․The following proceedings are brought by the plaintiff against the Commonwealth and were consolidated by orders made on 6 February 2024:
(a)SC 492 of 2022;
(b)SC 146 of 2023;
(c)SC 262 of 2023;
(d)SC 19 of 2024;
(e)SC 20 of 2024; and
(f)SC 21 of 2024.
3․Each of those proceedings involve allegations against the Australian Federal Police (Police) in the performance of their duties for ACT Policing.
4․There are two further proceedings brought by the plaintiff against the Commonwealth of Australia. They are:
(a)SC 53 of 2023, involving allegations against the Department of Infrastructure and Regional Development; and
(b)SC 263 of 2023, involving allegations against the Department of Home Affairs.
Applications for determination
5․The Commonwealth’s application in proceeding was filed on 22 August 2023. The application seeks that the plaintiff’s claims in the consolidated proceeding be struck out and that there be an order for summary dismissal under r 425 of the Court Procedures Rules (2006) (ACT) (Rules).
6․The plaintiff has also filed a number of applications in proceedings seeking to set aside the Commonwealth’s applications and for summary judgment pursuant to r 1146 of the Rules. As there were overlapping issues, the matters were all listed for a concurrent hearing on 13 March 2024.
7․Proceeding SC 53 of 2023 is awaiting the outcome of these applications, as the result of the consolidated proceeding is likely to affect that proceeding. It is to be listed for directions following the delivery of this judgment.
8․In respect of proceeding SC 492 of 2022, the plaintiff subsequently requested that he be permitted to rely on updating evidence filed on 31 March 2025. That was not opposed, and an order was made granting leave to reopen and to rely on further evidence at a brief hearing on 4 April 2025. The plaintiff has also filed updating submissions on 13 March 2025, which correct some aspects of his previous pleading and arguments. No formal order was made permitting reliance on those submissions. However, given the reopening and the fact that their content relates to the matters before the Court for consideration, it is clear that the plaintiff expected the Court to take those further submissions into account and I have done so.
Applicable principles
9․Rule 425(1) of the Rules isin the following terms:
Pleadings – 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.
...
10․The Commonwealth relies on all paragraphs of the above rule. It did not raise or rely on r 1147, the complementary rule permitting a grant of summary judgment. Some of the arguments made may overlap with considerations under that rule, but as it was not argued, I have not addressed the application by reference to that rule.
11․Each limb of r 425 is a separate issue on the application, but I have dealt with the various limbs only to the extent necessary to determine the dispute. In doing so, it should be briefly observed that many of the principles set out below have been discussed in earlier litigation involving the present plaintiff. They include Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 (Manny 2023) at [59]-[69] and Manny v Shiels [2022] ACTCA 22 (Manny 2022) at [17]. A number of the principles are set out again here as part of disclosing the reasoning process for the present pleadings under consideration and for ease of reading.
The pleadings in the consolidated proceeding
12․The claim as pleaded in the Amended Statement of Claim filed 16 March 2023 against the Commonwealth in SC 492 of 2022 relates firstly to an incident on 10 December 2022. There is also a proposed second Amended Statement of Claim dated 31 March 2023 attached to one of the plaintiff’s affidavits, the contents of which I have also considered on this application. In summary, the plaintiff alleges:
(a)He was the victim of an attack by six men who were said to have assaulted him and taken his bicycle.
(b)He rang the Police on the emergency 000 number and was told that the Police would contact him or attend the place where the plaintiff then hid for an hour, a short distance from the oval where he had encountered the six men.
(c)The Police did not attend and did not contact him.
(d)The plaintiff went to the police station the next day (11 December 2022) 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.
(e)The Police discriminated against him and that incident was a continuation of a pattern of conduct that had occurred since 2004. The originating claim explains the incident in August 2004, where the Police did not respond to an emergency call or email from the plaintiff relating to an assault which occurred in Oatley Court in Belconnen.
13․There are also allegations concerning either fraud or apprehended bias in relation to conduct that led to a defamation proceeding, which ultimately resulted in a judgment against the plaintiff: P and W v Manny and Anor [2010] ACTSC 50 (P and W).The parties in P and W were involved in an altercation at a karate school, the facts of which are discussed later in these reasons. The reference to the plaintiffs by the pseudonyms “P” and “W” was a product of the plaintiffs initially being granted pseudonyms while the matter was litigated. However, orders were subsequently made removing the pseudonyms and the plaintiffs were identified in the judgment itself (at [40]) as being Peter Shiels and Warwick Shiels. It is sufficient at this point to explain that certain conduct on 27 and 28 August 2004 caused the plaintiff here (Mr Manny) to write to the Police in November 2004. The letter to the Police was then alleged to have been defamatory. That was the matter litigated in P and W.
14․The connection between P and W and the current litigation involving the Commonwealth is that Warwick Shiels was a police officer and Peter Shiels was his father, who the plaintiff alleged was formerly the lawyer for the “police union”.
15․The plaintiff’s view is that there was some collusion by members of the Police at the time of the investigation of that assault in 2004, and that the Police’s ongoing less favourable treatment of him is directly linked to that early history.
16․The plaintiff separately relies on conduct following a burglary, which occurred on 11 December 2002 and was investigated by the Police. The genesis of that complaint is best described by referring to a document issued by the Police dated 28 July 2003, the contents of which form part of the “second amended statement of claim” proposed by the plaintiff:
Jeff Manny
Attention: To whom it may concern
BURGLARY OF [residential address]
On 11 December 2002, Police attended [residential address] Florey in the Australian Capital Territory, the property of Jeff Manny in relation to a burglary at that address.
Jeff Manny reported a number of items stolen from his house in relation to the incident including passports and birth certificates in the names of [various family members].
As a result of Police investigations an offender was apprehended for the burglary. The offender stated he threw the items in a nearby rubbish bin which was emptied before the Police were able to attain the items.
17․The plaintiff alleges that he was not told about what had happened to the stolen documents for more than eight months. This failure to inform the plaintiff in a timely manner of the whereabouts of the stolen documents, and the defamation proceeding in 2010, are alleged to constitute fraud. They are also said to found relief on the basis of negligence. The plaintiff alleges that the failure to tell him what had happened to his passport and birth certificates deprived him of the opportunity to recover them. This in turn meant that the plaintiff could not travel overseas to see his father before he died and was unable to attend his father’s funeral, which has brought shame, pain and suffering upon the plaintiff.
18․There is a separate allegation that the Western Australian Government did not sell an iron ore mine to the first plaintiff in 1993 because he is a Muslim. The mine was instead sold to Andrew Forrest.
19․The plaintiff also alleges that he lost an asset portfolio which was caused by the negligence of DLL (presumably a reference to David Lardner Lawyers) and the ANZ Bank appointing receivers, which caused significant losses of $250 million including an ongoing loss of income for the plaintiff.
20․The relief sought in the originating claim is $38 million in damages. In a second amended originating claim proposed by the plaintiff, an order for compensation in the sum of $147.76 million is sought. 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 the plaintiff. The plaintiff asserts that those companies would have achieved historical growth and thus increased in value. Elsewhere the increased quantum appears to be based on interest being payable over the years on the loss of the businesses.
21․In respect of proceeding SC 146 of 2022, the claim lodged 26 July 2023 repeats the following allegations:
(a)The failure of the Police to communicate information regarding their investigation of the 2002 burglary;
(b)The alleged collusion and fraud by the parties involved in the defamation litigation and the assault incident in August 2004;
(c)The attack on the plaintiff when he was riding his bicycle on 10 December 2022 and the failure by Police to take any action;
22․The plaintiff also makes two further allegations. The first involves an allegation of poor treatment by the Police when the plaintiff called to report an offence involving his wife in July 1994, which the plaintiff alleges was racially motivated because he is a Muslim. The second alleges that the P and W litigation caused Centrelink to stop the plaintiff’s Centrelink payments on 13 April 2023.
23․These events were individually and collectively alleged to have caused a litany of misfortune to be visited upon the plaintiff. I have summarised it as follows:
(a)The fraudulent conduct of the plaintiff’s opponents in the defamation proceeding caused substantial economic loss, physical and mental disabilities, and pain and suffering.
(b)Missiles were thrown (by Peter Shiels and Warwick Shiels) at the plaintiff’s business and home.
(c)The plaintiff had to sell a number of businesses. The plaintiff alleged that he and associated companies lost $250 million.
(d)The plaintiff was unable to build a shopping centre in Belconnen.
(e)Tenants vacated buildings owned by the plaintiff (or companies associated with him).
(f)Following the P and W judgment, public authorities treated the plaintiff in a less favourable way.
(g)The plaintiff separated from his wife.
(h)The plaintiff’s family unit was destroyed.
(i)The plaintiff and his family were evicted from their home (proceeding SC 746 of 2011). This resulted in the plaintiff being unable to visit his mother before she died and missing his mother’s funeral. Again, this brought shame, pain, and suffering to the plaintiff.
(j)The plaintiff’s health was paralysed. He has endured 20 years of pain and suffering.
24․There is a mixture of legal authorities and references to legislation. The plaintiff’s causes of action are based on the following:
(a)Crimes Act 1900 (ACT), ss 274, 399, 114D (organised fraud);
(b)Australian Federal Police Act 1979 (Cth) (AFP Act), s 64B (Commonwealth liability for torts committed by members of the Police in the performance or purported performance of their duties);
(c)Human Rights Act 2004 (ACT) (HR Act), s 27A(3)(a) (right to education) and ss 40, 40C and 40A (obligations of public authorities and legal claims brought under the HR Act); and
(d)Racial Discrimination Act 2004 (Cth) (Racial DiscriminationAct) (unspecified).
25․In a number of places, the plaintiff has also referred to conduct and the orders of Gray J in the defamation proceeding as being vitiated by apprehended bias. However, in submissions dated 13 March 2025, the plaintiff withdrew reliance on those matters as founding any cause of action (an issue that was expressly addressed in Manny 2023 at [44]-[45]).
26․The claim in SC 146 of 2022 seeks relief in the amount of $250 million, largely on the same basis as that identified in respect of SC 492 of 2022.
27․In proceeding SC 262 of 2023, the claim filed on 28 June 2023 details the same conduct alleged against the Police, referring to:
(a)the burglary on 11 December 2002; and
(b)conduct on 27 and 28 August 2004 which involved the people who then litigated the defamation proceeding and orders made in P and W.
28․In proceedings SC 19 of 2024, SC 20 of 2024 and SC 21 of 2024, respectively commenced on 4, 5 and 9 January 2024, the allegations are almost identical. For present purposes, there is no substantive difference. The relief claimed is between $7 and $8 million, although the claim still pleads losses of $250 million. The claims in these three proceedings repeat all the allegations referred to above. Some additional allegations appear in SC 20 of 2024 and SC 21 of 2024, namely that the plaintiff was attacked by an offender in Florey on 6 November 2023 following the plaintiff taking pictures of a big truck parked on a public road, and an allegation about unsatisfactory care by Canberra Hospital relating to thyroid surgery.
29․In addition, in all three proceedings, the relief claimed under the Racial Discrimination Act is clarified to specify ss 18C and 18D. An additional source on which the plaintiff claims a right to the relief is s 18 of the Australian Consumer Law (being schedule 2 of the Competition and Consumer Act 2010 (Cth)).
The claim in SC 263 of 2023
30․This proceeding is brought against the Commonwealth in relation to conduct attributed to the Department of Home Affairs. The pleaded facts in the Amended Statement of Claim dated 18 October 2023 are that in 2001, the defendant rejected applications for a visitor visa made by the plaintiff’s parents. From 2003, the rejection of a visitor visa for the plaintiff’s mother continued. From 2015, visitor visa applications for other family members have also been rejected.
31․The plaintiff believes that the Commonwealth has included him on a blacklist, which is affecting the right of his family members to visit him. He alleges this occurred following the incident on 27 and 28 August 2004.
32․The plaintiff otherwise refers to similar allegations as those made in the consolidated proceeding. The pleaded claim goes on to refer to allegations made in different proceedings, being SC 53 of 2023, allegations against ACT Housing and the consolidated proceeding.
The court’s task or approach
33․The grant of summary relief (whether in part or in whole) is a discretionary remedy, to be exercised with the utmost caution and only in very clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; Young v Hones [2014] NSWCA 337 at [163].
34․The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true, by looking at the substance of the claim, not the mere form or expression of it: see McColley v Commonwealth [2014] ACTCA 21 at [31] and the authorities there-cited, which include Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 at [5], the principles of which have been considered and applied here.
35․In the context of assessing whether a pleading discloses a reasonable cause of action, the court looks 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 at [22] per French CJ and Gummow J. Their Honourswent 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 Owners – Units Plan No 1917 v Koundouris [2014] ACTSC 269 at [40].
36․Further, the pleadings and allegations referred to in the plaintiff’s affidavits and submissions have been set out in some detail above in an endeavour to demonstrate that scrupulous examination has been given to all the circumstances. That is what is required where a court is considering whether to shut out a claim a party wishes to pursue, without determination of its intrinsic merit: see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [85] in the context of considering a ground that the claim ought to have been raised in earlier litigation.
Are the consolidated proceeding and SC 263 of 2023 an abuse of process?
Applicable principles
37․The circumstances in which a proceeding will be found to amount to an abuse of process are not capable of comprehensive definition or exhaustive statement: Batistatos v Roads and Traffic Authority(NSW) [2006] HCA 27; 226 CLR 256 at [9]; UBS AG v Tyne [2018] HCA 45; 265 CLR 77 (UBS v Tyne)at [1].
38․The applicable principles are drawn from cases such as Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 (Tomlinson)at [24]-[26]; and UBS v Tyne at [126]. The doctrine of abuse of process is informed in part by considerations of finality and fairness, as seen from the discussion of the doctrine in Tomlinson at [24]-[26] (footnotes omitted, emphasis added):
24. ... The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
39․The emphasised words in [26] are significant here because the Commonwealth was not a party to the earlier proceeding in P and W.
40․Picking up the emphasised words in [25], the court has inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair or unjustifiably oppressive to a party to litigation before it, or otherwise bring the administration of justice into disrepute. The principle was explained in Walton v Gardiner (1993) 177 CLR 378 (Walton) at [23] (emphasis added):
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. …
Positions of the parties
41․The Commonwealth’s position is that the plaintiff’s repeated challenge to matters that have already been determined by the court in other proceedings constitutes an abuse of process. Otherwise, the causes of action are foredoomed to fail on the basis that no cause of action is pleaded and there is no indication from the facts pleaded of anything that might lead to a recognisable cause of action being pleaded if another attempt was allowed.
42․The plaintiff has filed various submissions dated 5 and 6 December 2023, 5 February 2024 and 13 March 2025. The submissions in large part repeat allegations made in the pleadings. The plaintiff has also referred the court to various affidavits on which he relies. Although I have read the plaintiff’s material, it does not include evidence or submissions engaging with the abuse of process and lack of cause of action arguments made by the Commonwealth.
Consideration
43․The consolidated proceeding is an abuse of process for two reasons. The first is that the plaintiff is seeking to “litigate anew” allegations that have indeed been determined by other proceedings. The second is that the proceeding is in substance “foredoomed to fail” against the Commonwealth, either because the Commonwealth had no involvement in the matters that are the subject of allegations or because there is no arguable cause of action available to the plaintiff. I have considered the allegations by their subject matter.
P and W litigation
44․The plaintiff has alleged fraud and collusion against the Commonwealth as being liable for actions of its police officers. The allegations concern the P and W litigation and the underlying conduct that led to that defamation proceeding. The plaintiff alleges conduct constituting fraud or collusion before, during and after 27 August 2004, which led to the orders being made in 2010 by Gray J in P and W.
45․The reason that the plaintiff cannot now run a separate claim against the Commonwealth is that the collusion or fraud that the plaintiff alleges concern the very facts that were traversed in P and W. The plaintiff (who was the first defendant in that proceeding) expressly made allegations about the veracity of a police officer’s evidence during the trial, including an apparent suggestion that the evidence was “corrupted”: see P and W at [88]. That police officer was named again in the pleading here. The court at first instance did not accept the plaintiff’s version of events: P and W at [101].
46․The plaintiff unsuccessfully appealed the result in P and W by way of a cross-appeal: Shiels v Manny and Manny Pty Ltd; Manny v Shiels [2012] ACTCA 22 (Shiels). The grounds of the plaintiff’s cross-appeal were considered in Shiels at [20] and following. There was no reference to fraud or collusion in the appeal pursued.
47․More recently before Kennett J, the plaintiff unsuccessfully sought a further opportunity to appeal P and W out of time: Manny 2022. One of the grounds on which the plaintiff relied was that the judgment in P and W constituted a grave miscarriage of justice which should not be allowed to stand in the public interest: Manny 2022 at [13]. Kennett J described the underlying facts of P and W at [3]-[5]:
3. In 2004, Peter Shiels (the first respondent) and his son, Warwick Shiels (the second respondent), operated a karate school in Belconnen. At that time, Peter Shiels was a retired lawyer and Warwick Shiels was a Senior Constable in the Australian Federal Police. Mr Manny’s three sons were students at the karate school. On 27 August 2004, there was a physical altercation at the school. Mr Manny reported the incident to the Police, claiming that he had been assaulted by both Peter Shiels and Warwick Shiels.
4. Peter Shiels alleged that he subsequently received threats from Mr Manny over the telephone. That matter was reported to the Police and Peter Shiels obtained a protection order against Mr Manny.
5. In the weeks that followed, Mr Manny wrote two letters which he sent to the Australian Federal Police. The first letter, dated 1 September 2004, alleged that both Peter and Warwick Shiels had assaulted him on 27 August 2004. The second letter, dated 9 November 2004 and sent on the letterhead of “Jeff Manny Pty Ltd ABN 90 097 755 916”, also referred to the alleged assault and contained further allegations: that Peter Shiels was a paedophile, had molested young boys including Mr Manny’s children, and had threatened to harm Mr Manny and his children; and that Warwick Shiels molested girls and had engaged in “mental and physical assault” against boys. When this letter came to the attention of the respondents, they sued Mr Manny and Jeff Manny Pty Ltd for defamation.
48․Kennett J later referred to the appeal in Shiels and stated at [17]:
The judgment of Gray J has become merged in the judgment of the Court of Appeal: Wishart v Fraser (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.
49․His Honour found that a grant of leave would be futile in the absence of fresh evidence: Manny 2022 at [18]. Kennett J dealt with the proposed miscarriage of justice ground, stating at [19]:
… The argument that the judgment constituted a miscarriage of justice was not supported except by Mr Manny’s own assertions about things that had occurred during the trial and in the pre-trial dealings between the parties; and it was not suggested, for example, that Mr Manny had only recently become aware of these matters. Finally, while the judgment was adverse to Mr Manny and no doubt a source of pain and trouble for him, the suggestion that it is the source of all of his problems appears overstated; and, even if it be correct, it does not take the matter anywhere except as an adjunct to his claim of a miscarriage of justice.
50․From these judgments, the following conclusions are drawn:
(a)The conduct of the police officers about which the plaintiff seeks to complain in the consolidated proceeding was a live issue in P and W.
(b)The matter was appealed and the issues of fraud, collusion, bias or any other form of unsatisfactory conduct by the police officers involved in P and W, either as parties or witnesses, were not pursued.
(c)The matter concerning conduct of police officers was again ventilated unsuccessfully at appeal level in 2022 as part of an argument about a miscarriage of justice.
51․The Commonwealth was not a party to any of these previous proceedings. However, in relation to the conduct of police officers that preceded the orders in P and W, nothing that is before the court discloses any foundation for the position pleaded by the plaintiff, let alone any basis for the plaintiff being able to pursue the allegations against the Commonwealth years later in separate proceedings. Whether the plaintiff seeks to characterise his complaints as falling within racial discrimination, negligence or fraud, to permit the plaintiff to run a claim against the Commonwealth in respect of the conduct of the police officers involved in the P and W litigation would bring the administration of justice into disrepute.
The business losses of $38 million - $250 million
52․The same reasoning applies in respect of the extensive business losses for which the plaintiff seeks a remedy, whether that remedy sought against the Commonwealth is founded on negligence, racial discrimination, fraud or any other cause of action. The plaintiff has already litigated the cause of action that he said gave rise to his extensive business losses. That claim was brought against David Lardner Lawyers and was unsuccessful: see Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 (Manny v DLL) and on appeal Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12 (Manny v DLL (Appeal)).
53․In Manny v DLL, Murrell CJ found (at [405]) that the catalyst for the loss of the businesses was ANZ foreclosing on a loan facility made to Mr Manny and his various associated companies, which was not repaid by 17 October 2010. Her Honour had earlier found (at [390]) that there was a court order restraining the sale of a number of properties which may have assisted in repaying the business loan. That order was a product of an exercise of judicial power and not attributable to any conduct by David Lardner Lawyers (let alone the Commonwealth, being the named defendant in this proceeding).
54․Insofar as the claim for many millions of dollars for business-associated losses is concerned, this is a clear case where the plaintiff seeks to litigate anew a case which has already been disposed of by earlier proceedings. Notwithstanding that the claim is now sought to be run against the Commonwealth, it is substantively a claim made in respect of the same loss that was litigated against a different party and constitutes an abuse of process within the principles articulated in UBS v Tyne and Tomlinson.
55․Separately, I have previously refused an application in proceeding SC 492 of 2022 for the businesses associated with the plaintiff who suffered the losses to be joined to the proceeding: Manny 2023 at [38]-[46]. Without setting the findings out again, the essence was a conclusion that there was no foundation for permitting the companies associated with the plaintiff to be joined in the proceeding. In that regard, it has already been determined that that aspect of the proceeding was foredoomed to fail.
Allegations against non-parties
56․The allegations in relation to the Western Australian Government and the sale of a mine must be put to one side as having no bearing on the proceeding. They involve no conduct by the Commonwealth.
57․Similarly, the allegations about an altercation arising in the context of the plaintiff taking photos of a truck in the street are not conduct that may be in any way attributed to the Commonwealth.
58․Insofar as any part of those allegations is sought to be linked to the Commonwealth, that aspect of the proceeding is also bound to fail.
59․Insofar as there was any claim based on human rights, the only reference to a specific human right was to a right to education under s 27A(3)(a) of the HR Act. This appears to be more properly directed to a different defendant in a different proceeding, which is the subject of a separate judgment (see Manny v University of Canberra (No 2) [2025] ACTSC 147). In any event, s 40C(6) of the HR Act provides that the Supreme Court may grant any relief it considers appropriate in a proceeding commenced under the HR Act “except damages.” Damages is the only relief sought. The only other relief the plaintiff requested was for the orders of Gray J in P and W to be set aside. That part of the relief has already been addressed above.
The failure to investigate the theft of the plaintiff’s bicycle in 2022 and the delay in communication of information known to police in respect of a burglary of the plaintiff’s house in 2002
60․The Commonwealth submitted that there was no arguable cause of action available against it arising out of the alleged conduct of Police, such that granting leave to replead would be futile. In oral submissions, counsel for the Commonwealth argued that there was simply no duty of care owed to the plaintiff, which is why the Commonwealth contended that it would be futile to give the plaintiff any further opportunity to replead his case.
61․It should first be understood that the pleading is imprecise and that the various causes of action arise at best in an oblique manner. Following Mendonca v Legal Services Commissioner [2020] NSWCA 84 per McCallum JA (when sitting in that court) at [21], the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point. However, given summary dismissal is sought as opposed to strike-out, I have attempted to discern from the references to various legislation and legal terms used by the plaintiff what may be viewed as the nugget of the plaintiff’s case for each cause of action. The factual circumstances have been considered from the perspective of claims in negligence, under the Racial Discrimination Act and under the Australian Consumer Law.
62․In respect of the claim in negligence, the main reason why these allegations are not maintainable against the Commonwealth is a legal principle based in public policy. The principle was articulated in a line of authority deriving from Hill v Chief Constable of West Yorkshire [1989] AC 53 (Hill). In that case, Lord Keith of Kinkel found (at 63) that an action for damages in negligence should not lie in circumstances where the complaint concerned the manner or conduct of a police investigation or issues about the competency of an investigation.
63․In each circumstance here, the plaintiff is in the position of a victim. The first incident in 2002 related to a failure to provide information to the plaintiff about the whereabouts of his precious belongings when the information became known to the Police. The second incident in 2022 involved a failure to attend and then to investigate the assault against the plaintiff and theft of his bicycle at all. Both those matters fall squarely within the circumstances described in Hill.
64․Hill has been cited with approval on numerous occasions, including Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [57]; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 per McHugh J at [101]; State of New South Wales v Godfrey & Godfrey [2004] NSWCA 113 per Spigelman CJ at [68] and [72]; State of New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 per Spigelman CJ at [115]; and State of New South Wales v Heins [2005] NSWCA 258 per Handley JA at [24].
65․In this jurisdiction, Hill has been called in aid of the Court of Appeal finding that the Director of Public Prosecutions did not owe a duty of care to victims of crime in relation to the exercise of the discretion to prosecute: Mensinga v DPP [2003] ACTCA 1. That appeal concerned a decision of the Master to strike out a statement of claim because it disclosed no reasonable cause of action (that is, the argument about whether a duty existed occurred at the summary threshold level, similar to that under consideration here).
66․This should not be taken to in any way suggest that the Commonwealth has a general immunity from liability in negligence for the conduct of its police officers. In that regard, the law is to the contrary: see State of New South Wales v Spearpoint [2009] NSWCA 233 at [9]-[10], citing State of NSW v Tyszyk [2008] NSWCA 107 at [128]. Section 64B of the AFP Act also makes it clear that there is no blanket immunity in respect of tortious conduct engaged in by the Police. However, this is not a case where either of the circumstances under consideration could give rise to any duty of care on the part of the Commonwealth. That is fatal to any arguable cause of action in negligence on the established authority referred to above.
67․In respect of the claim founded upon the Racial Discrimination Act, the plaintiff sought to draw a link between the Police’s alleged failure to communicate with him in a timely manner concerning his family belongings stolen in the burglary in 2002 and the failure to investigate the incident involving the theft of his bicycle in 2022.
68․As the Commonwealth submitted, it is not enough to simply list legislative provisions and use common legal phrases in a pleading that hint at a cause of action based on a particular statute and leave it to the defendant and the court to guess at how the cause of action ties together. However, it is clear that the plaintiff perceives a racial discrimination aspect of his treatment by the Police over the years, which he says is unlawful.
69․The Racial Discrimination Act is a Commonwealth statute. Any claim based upon a breach of it is governed by a Federal statutory regime. In that regard, the Commonwealth drew the Court’s attention to Picos v Australian Federal Police [2015] FCA 118 (Picos) at [34]-[38]. Any right to bring a statutory complaint under the Racial Discrimination Act commences with a complaint being first lodged with the Australian Human Rights Commission under s 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). If that complaint has been terminated and notice given, then an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2): s 46PO of the AHRC Act. However, the making of a complaint is a pre-condition to any statutory cause of action sought to be pursued. Neither the AHRC Act nor the Racial Discrimination Act give rise to any common law cause of action for relief: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71]. That judgment was dealing with the Sex Discrimination Act 1984 (Cth) but the legislative scheme is the same as that under consideration here. Absent any initial complaint, the Court simply does not have jurisdiction: Picos at [38].
70․There was no suggestion that any complaint process under the AHRC Act had been followed by the plaintiff here. Accordingly, this Court has no jurisdiction to deal with any claim arising under the Racial Discrimination Act. Given that fundamental difficulty, it is not appropriate to go further and assess whether the claim might otherwise be potentially arguable, as that would trespass on matters accorded to a different jurisdiction. It is enough to explain to the plaintiff why the claim cannot be made in this Court and that is why it is beyond doubt that granting leave to replead it would be futile.
71․With regard to the more recent inclusion of a claim under the Australian Consumer Law, section 18 of schedule 2 to the Competition and Consumer Act 2010 (Cth) deals with misleading or deceptive conduct “in trade or commerce”. There is no argument that could be made to bring the conduct of the Police that is the subject of complaint by the plaintiff within any concept of being in trade or commerce. Any cause of action sought to be brought under that section of the Australian Consumer Law would be foredoomed to fail.
SC 263 of 2023
72․To the extent that the claim in this proceeding includes the allegations made in the consolidated proceeding, the reasoning above applies.
73․Specifically with regard to the last of the statutory actions discussed, there is an additional reference in this claim to the Fair Trading (Australian Consumer Law) Act 1992 (ACT). However, Part 2 of that statute applies the same provisions of the Australian Consumer Law. The issuing of visas by the Commonwealth is equally not conduct occurring in trade or commerce.
74․Otherwise, with regard to the discrete matter pleaded against the Department of Home Affairs of the repeated rejection of visitor visas for members of the plaintiff’s family, there is a fundamental difficulty of standing for the plaintiff in that none of the visa rejections concerned an application made by him. Any administrative law remedy would be that of the family member seeking to visit. There is no identifiable cause of action arising for the plaintiff.
75․The plaintiff has pleaded that he has been placed on some form of blacklist since the incidents that occurred in 2004, and that is the true reason for the difficulty his family members have faced over the years in attempting to visit him. Assuming that fact to be true for the purposes of the present assessment of the plaintiff’s claim, that does not of itself give rise to any discernible cause of action known to the law. The remedies that have been sought, of $25 million in damages and $2 million in compensation, are hyperbolic figures unrelated in any discernible way to conduct alleged against any officer of the Department of Home Affairs. On the material available to the court, that discrete aspect sought to be pursued by the plaintiff is also manifestly foredoomed to fail.
Conclusion on the consolidated claim and SC 263 of 2023
76․A number of other arguments were made by the defendant, including submissions concerning a lack of material facts to support certain elements of a cause of action, difficulties with tying the loss claimed to the conduct pleaded, and the claims relating to conduct that occurred years earlier, such that any cause of action relying on such conduct would be well out of time. It is unnecessary to traverse every pathway relied upon by the Commonwealth. The above is sufficient to address the application.
77․On the pleaded facts, the plaintiff is a person who has faced a series of unfortunate events during his lifetime. His financial position, his family circumstances and his health have all been dramatically affected by those events. To the extent that there were causes of action available to him, they have been litigated and determined. Recalling what was stated in Walton, the court exists to administer justice with fairness and impartiality. In matters of civil litigation, the court’s primary function is to apply the law to resolve disputes and part of that includes using best endeavours to ensure that those who do not have the resources of a lawyer are nevertheless able to access justice. However, the court is not able to remedy every bad thing that happens to a person in life. On the facts raised by the plaintiff in his various iterations of pleading, to permit any form of claim to go forward against the Commonwealth would not be fair for the reasons explained above. It would convert the court into an instrument of injustice, and I therefore conclude that the consolidated proceeding and proceeding SC 263 of 2023 are each an abuse of process.
78․The conclusion in respect of the application for summary dismissal means that the plaintiff’s applications for summary judgment fall away.
Costs
79․Costs are discretionary but must be exercised on a principled basis. The Commonwealth has sought an order for costs. There is no reason why the ordinary rule that costs follow the event should not apply. Whether the Commonwealth ultimately pursues any order for costs that is made is a matter for it to determine in due course.
Orders
80․The Court makes the following orders:
(1)Pursuant to r 425 of the Court Procedures Rules 2006 (ACT) and the inherent jurisdiction of the Court, the operative originating claim and statement of claim in each of the following proceedings are struck out as an abuse of process:
(a)SC 492 of 2022;
(b)SC 146 of 2023;
(c)SC 262 of 2023;
(d)SC 19 of 2024;
(e)SC 20 of 2024;
(f)SC 21 of 2024; and
(g)SC 263 of 2023.
(2)Each of the proceedings referred to in order 1 above is dismissed.
(3)The plaintiff is to pay the costs of the proceedings.
Addendum
81․Following delivery of judgment, the defendant sought a further order for an abundance of caution to make it clear that other applications that had been brought by the plaintiff and not yet determined were disposed of by order 2. That was appropriate in light of my findings at [78] above. Accordingly, the following order was made:
(4)As a consequence of order 2 and for abundant caution, all extant interlocutory applications in the above proceedings are dismissed.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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