Manny v David Lardner Lawyers - [2019] ACTSC 176

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Parties:	Jeff Manny (Plaintiff) David Lardner Lawyers (First Defendant) Capon & Hubert (Second Defendant) (withdrawn) Strong Law (Third Defendant)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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTSC 176
Decision Date: 12 July 2019

CaseChat Overview and Summary

The case of Manny v David Lardner Lawyers involved the plaintiff, Manny, who sought to stay or dismiss an application for judicial review against David Lardner Lawyers. The primary issue was whether the plaintiff's rights of appeal had been exhausted and whether the claim was frivolous or vexatious. The case was heard in the Supreme Court of the Australian Capital Territory.

The court was required to determine if the plaintiff had fully exhausted all available avenues of appeal before bringing the judicial review application. Additionally, the court needed to assess whether the claim was frivolous or vexatious under the Court Procedures Rules 2006 (ACT) r 3566. The court had to balance the plaintiff's right to seek judicial review with the potential for abuse of the judicial process.

The court found that the plaintiff had not exhausted all available avenues of appeal and thus, the application for judicial review was premature. The court further held that the claim was vexatious as it was brought without a reasonable cause of action. Consequently, the plaintiff was ordered to pay costs on the ordinary basis. This decision underscored the importance of adhering to the proper procedural steps before seeking judicial review and highlighted the court's power to impose costs for frivolous claims.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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