Manny v David Lardner Lawyers
[2019] ACTSC 176
•12 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Manny v David Lardner Lawyers |
Citation: | [2019] ACTSC 176 |
Hearing Date: | 5 and 12 July 2019 |
DecisionDate: | 12 July 2019 |
Before: | Elkaim J |
Decision: | See [25] |
Catchwords: | JUDICIAL REVIEW – Application by plaintiff to stay or dismiss application for judicial review – Court Procedures Rules 2006 (ACT) r 3566 – rights of appeal not exhausted – frivolous or vexatious claim – costs awarded against the plaintiff on ordinary basis |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 40(4)(b), 1905, 3566, 5312 Supreme Court Act 1993 (ACT) s 37J |
Cases Cited: | Ferella v Stomo [2017] NSWCA 268 |
Parties: | Jeff Manny (Plaintiff) David Lardner Lawyers (First Defendant) Capon & Hubert (Second Defendant) (withdrawn) Strong Law (Third Defendant) |
Representation: | Counsel Self-represented (Plaintiff) U Boettcher (First and Third Defendant) |
| Solicitors Self-represented (Plaintiff) Boettcher Law (First and Third Defendant) | |
File Number: | SC 527 of 2016; SC 270 of 2019 |
ELKAIM J:
These matters originally came before me on 5 July 2019. At that stage there were two applications requiring resolution. The application in Matter No SC 527 of 2016 was to set aside a subpoena and a notice to produce. The application in Matter No SC 270 of 2019 was to stay or dismiss the judicial review application that had been instituted by Mr Manny on 29 May 2019 and then amended by a further document filed on 28 June 2019.
The first application was filed by the first defendant on 24 June 2019 and the second, filed on behalf of the first and third defendants, on 28 June 2019.
I was informed that the subpoena and the notice to produce, the subject of the 2016 matter, had already been set aside by the Registrar. That only left costs to be decided in that application.
I understood from Mr Manny that he was going to consider proceeding by way of an application for leave to appeal, together with an application for an extension of time, rather than by way of judicial review. I anticipated that he would file documents to that effect. However he chose not to do so and instead chose to maintain his entitlement to the application for judicial review.
This meant that when the matter resumed today it was necessary to deal with the costs part of the application related to the 2016 matter and also to deal with the application for the dismissal of the 2019 application for judicial review.
Because the subpoena and notice to produce had already been set aside, I formally dismissed the application and ordered that each party pay its own costs. I gave ex-tempore reasons for that course earlier today.
Application to dismiss
Turning now to the application to dismiss the judicial review proceedings, the application was made pursuant to r 3566 of the Court Procedure Rules 2006 (ACT) (the Rules). In short the applicant says the proceedings are misconceived in that they either relate to matters entirely foreign to the subject dispute (for example separation of powers between the executive and the judiciary) or they do not provide any proper basis upon which a judicial review might be conducted. I agree.
I need not say anything about the grounds arising from a separation of powers.
I asked Mr Manny why he was proceeding by way of judicial review. He gave me four reasons which, with his approval, I summarised as follows:
(a)It was his understanding that a judicial review was necessary to set aside a statutory law so as to utilise r 30(4)(b) of the Rules.
(b)The orders made by McWilliam AsJ on 2 April 2019 prevented the case going ahead because, although interlocutory in nature, the orders had effectively become final orders.
(c)Security for costs should not be used as a weapon to stop the proceedings.
(d)Judicial review was necessary to defeat the unnecessary litigation pursued by the defendant in order to stop the case at a premature stage.
None of the above reasons constitute an appropriate basis for a judicial review application. Sackville AJA in Ferella v Stomo [2017] NSWCA 268 at [40] referred to the availability of judicial review proceedings to a “determined or obstinate litigant who has exhausted all rights of appeal to mount a further challenge by invoking the original (as opposed to the appellate) jurisdiction of the Court.”
The difference here is that while Mr Manny is undoubtedly a determined and obstinate litigant, he has not exhausted his rights arising from the decision of 2 April 2019 nor has he exhausted his rights of appeal. In fact it is apparent that Mr Manny is simply intent on maintaining proceedings without reference to whether or not they are the appropriate proceedings. He himself said “it doesn’t matter what sort of application” is made.
Mr Manny said he had commenced the judicial review proceedings on the advice of a barrister. Unfortunately no barrister appeared to justify this advice.
Sackville AJA’s comment in [41] that a “hearing is required” is not applicable here because of the powers given to the court by r 3566 of the Rules.
The origin of Mr Manny’s application for judicial review lies in the orders made by McWilliams AsJ on 2 April 2019. These orders were as follows:
The orders of the Court are as follows:
(1)Subject to compliance with the conditions set out in order 3, leave is granted to the plaintiff to commence and conduct derivative proceedings on behalf of Jeff Manny Constructions Pty Ltd (in liq) (ACN 083 451 870), JK3L Pty Ltd (in liq) (ACN 081 795 128), and Lonagann Pty Ltd (in liq) (ACN 099 576 904).
(2)Subject to compliance with the conditions set out in order 3, the following corporations are joined to proceeding SC 527 of 2016:
(a) Jeff Manny Constructions Pty Ltd (in liq) (ACN 083 451 870) as the second plaintiff;
(b) JK3L Pty Ltd (in liq) (ACN 081 795 128) as the third plaintiff;
(c) Lonagann Pty Ltd (in liq) (ACN 099 576 904) as the fourth plaintiff;
(d) Landagency Pty Ltd (ACN 135 024 458) as the fifth plaintiff.
(3)The Court’s leave and joinder of the parties referred to in orders 1 and 2 above are subject to the following conditions:
(a) The corporations referred to in order 2 above are to be represented by a solicitor until further order; and
(b) On or before 3 June 2019, the first plaintiff, Mr Manny, is to pay into a solicitor’s trust account or alternatively into Court, the sum of $30,000 by way of partial indemnity in respect of any adverse costs order payable to the first defendant in the proceeding.
(4)The amended statement of claim filed 11 January 2018 is struck out.
(5)Leave is granted to the first plaintiff to file an amended statement of claim on or before 4 June 2019.
(6)The second to fifth plaintiffs are to file any statement of claim on or before 4 June 2019.
(7)The first plaintiff is to pay 5% of the first defendant’s costs of the application filed 25 January 2018.
None of the conditions set out in order 3 have been complied with. I was informed that an amended statement of claim was filed recently but certainly not within the time limit dictated by the orders.
Mr Manny’s concerns about his inability to provide the $30,000 for security for costs may be well-founded but they do not justify judicial review. They could be the subject of an appeal but, more importantly, the Rules provide for a change to the orders made. Rule 1905 states:
The court may, in special circumstances, amend or set aside an order made under this division.
In respect of the representation of the companies by a solicitor, as Mr Manny pointed out, McWilliam AsJ specifically contemplated a review of her orders. Her Honour stated at [76]:
The inclusion of the words ‘until further order’ will permit the Court to keep the question of the representation of the Companies and of Landagency under review. Where there is an uncontroversial directions hearing or a straightforward application, it may be possible for Mr Manny to seek to appear on behalf of the corporate entities on isolated occasions. Further, the proceeding might advance to a point where the risks of a lay advocate appearing or conducting the proceeding are of less significance and the costs of ongoing legal representation warrant revisiting of the issue. Nothing that I have said ought to prevent the Court from considering subsequent applications by Mr Manny for leave to appear, either on isolated occasions or if there has been a material change in circumstances.
Mr Manny has chosen not to take up the latitude provided by her Honour, but rather to inappropriately proceed by way of judicial review.
I am therefore of the view that r 3566 can be invoked because it would be inappropriate for the claim to be continued, there is no reasonable basis for the claim to be made, it is frivolous or vexatious and, probably also an abuse of the Court’s process. The judicial review proceedings must be dismissed.
Costs
Turning now to costs, Mr Manny requested that the proceedings not be dismissed but rather be stayed because this would delay the making of a costs order against him. In the circumstances of this case, there would be a costs order against Mr Manny in respect of the application by the defendant, whether the proceedings would be stayed or dismissed.
I can see no legitimate reason to stay the proceedings. Postponing a costs order is certainly not such a reason.
The defendant sought indemnity costs on the basis that the proceedings were always misconceived, that Mr Manny had been told so (see the correspondence in Exhibit 1) and the discretion of the court should be exercised to that effect.
I think there should be a costs order against Mr Manny. He commenced proceedings which he should not have commenced and which were doomed to failure. I do however note the email included in Exhibit 1 in which Mr Manny, on 24 June 2019, effectively asked for the application not to be filed until the call over on 5 July 2019. I think the appropriate order is that Mr Manny should pay the costs of the application on an ordinary (party party) basis.
Before making final orders I would add this to avoid further inappropriate proceedings. If Mr Manny does proceed by way of an appeal then it will be necessary for him to seek leave for an extension of time in order to file an application for leave to appeal. As McWilliam AsJ is not available to hear any application for an extension of time it will need to be made before the Court of Appeal (r 5312). Mr Manny will also no doubt bear in mind his possible rights under r 1905 and the scope given to him in [76] of her Honour’s reasons.
Orders
I make the following orders:
(a)The originating application for judicial review, including the amended application filed on 28 June 2019, is dismissed.
(b)Mr Manny is to pay the first and third defendants’ costs of the application for judicial review and the costs of the application to dismiss the originating process filed on 28 June 2019.
(c)The costs referred to in the preceding order are to be assessed on an ordinary basis.
| I certify that the preceding Twenty Five [25] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 12 July 2019 |
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