Manny v David Lardner Lawyers (No 3)
[2022] ACTCA 27
•1 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Manny v David Lardner Lawyers (No 3) |
Citation: | [2022] ACTCA 27 |
Hearing Date: | 1 June 2022 |
DecisionDate: | 1 June 2022 |
Before: | Kennett J |
Decision: | See [28] |
Catchwords: | APPEAL – APPLICATION – Application for summary judgment on appeal – whether summary judgment is available on appeal APPEAL – APPLICATION – Application to dismiss appeal – where notice of appeal does not comply with Court Procedures Rules 2006 (ACT) r 5403 – consideration of allowance to be made for difficulties faced by self-represented litigant |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 1146, 5001, 5403, 5604 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289 Manny v David Lardner Lawyers (No 2) [2022] ACTCA 13 Manny v Nissen [2022] ACTCA 17 |
Parties: | Jeff Manny (First Appellant) Jeff Manny Constructions Pty Ltd (Second Appellant) JK3L Pty Ltd (Third Appellant) Lonagann Pty Ltd (Fourth Appellant) Landagency Pty Ltd (Fifth Appellant) E D Lardner & K W Power trading as David Lardner Lawyers (First Respondent) K W Power (Fourth Respondent) David Lardner Lawyers Pty Ltd (Fifth Respondent) |
Representation: | Counsel Self-represented ( Appellants) J Larkings ( Respondents) |
| Solicitors Self-represented ( Appellants) Boettcher Law ( Respondents) | |
File Number: | ACTCA 59 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 5 November 2021 Case Title: Manny v David Lardner Lawyers (No 2) Citation: [2021] ACTSC 289 |
KENNETT J:
Introduction
The appellants have appealed from a judgment of Murrell CJ delivered on 5 November 2021 in which her Honour dismissed various claims against the respondents: Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289.
The first appellant (Mr Manny) appears for himself and has been granted leave to represent the other appellants.
Two applications are before me today. One is an application by Mr Manny, filed on 28 April 2022, seeking summary judgment. The other is an application by the respondents, filed on 18 May 2022, seeking that the appeal be dismissed on the basis that Mr Manny has not complied with an order and directions of the Court, and the current version of the notice of appeal (the fourth such version) does not comply with the Court Procedures Rules 2006 (ACT) (the Rules) and does not articulate a coherent or arguable ground of appeal.
Mr Manny filed a further document on 29 April 2022, entitled “Application in proceeding”. However, so far as I can see, it does not seek any relief. It appears to fall somewhere between a further version of the notice of appeal and a set of written submissions on the appeal.
In dealing with these applications, I am sitting as a single Judge exercising the jurisdiction of the Court of Appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
Summary judgment
Mr Manny’s application of 28 April 2022 is headed “Summary Judgment” and, on page nine, seeks orders that would set aside the judgment under appeal and substitute orders awarding compensatory relief to the appellants.
However, summary judgment in favour of a party seeking relief is not a process that is available in an appeal to this Court. It is not provided for in Chapter 5 of the Rules; nor are the provisions for summary judgment in Division 2.11.5 part of the body of rules picked up and applied to appeals by r 5001. Further, as Elkaim J noted in Manny v Nissen [2022] ACTCA 17 at [6]–[7], the rule that does provide for summary judgment (r 1146) is contained in a division that applies only to specific classes of proceeding (which do not include appeals). This is for a reason.
Summary judgment in a civil proceeding is “summary” in the sense that relief is granted without holding a trial in which all of the parties’ evidence is presented. For that reason summary judgment is granted only sparingly, and generally only in cases where it is clearly established that a trial would serve no purpose (because the party against whom summary judgment is being sought does not have a viable case).
In an appeal, the process is different. Evidence is received only exceptionally and by leave. There is no trial, and thus no utility in a process whose purpose is to avoid the need for a trial. To succeed, an appellant must articulate grounds of appeal and argue them at the hearing of the appeal. That hearing may be expedited in some cases, but there is no sense in which it can be abbreviated by a process involving “summary judgment”.
Even if such a process were available, I would not grant summary judgment in circumstances where the sufficiency of the Notice of Appeal is still the subject of a real dispute between the parties.
I will therefore refuse the application for summary judgment.
It is clear that the respondents should be awarded costs. They sought to have those costs ordered on an indemnity basis, on the ground that they had pointed out the problem faced by the application in correspondence. I am not persuaded that this is a sufficient basis for an order for indemnity costs against a self-represented litigant.
The respondents’ application
The appeal was commenced by filing of a Notice of Appeal (first NOA) on 26 November 2021. The respondents filed an application seeking to strike out that document, because Mr Manny had named several companies as appellants without obtaining leave to represent them.
Before that application had been heard, Mr Manny filed an amended Notice of Appeal (second NOA) on 25 February 2022.
The respondents’ application was heard by Berman AJ on 2 March 2022 ([2022] ACTCA 8). His Honour struck out the second NOA as incompetent. He granted leave to file a further Notice of Appeal but stipulated that no company could be added as an appellant without the consent of its liquidator.
A further amended Notice of Appeal (third NOA) was filed on 8 March 2022. The respondents also sought to have this document struck out.
This application was heard by Elkaim J on 23 March 2022 ([2022] ACTCA 13).
The third NOA had not complied with the express stipulation made by Berman AJ and it seems to have been common ground that it could not stand (see, eg, [9]–[11]). His Honour also accepted a submission that the third NOA did not comply with r 5403 of the Rules, observing that “[t]he deficiencies are obvious, in particular in regard to sub-rules 1(e) and (f)”.
Elkaim J granted leave to file a further amended Notice of Appeal within 28 days and leave to Mr Manny to act on behalf of the four companies. Pursuant to that leave, the current version of the Notice of Appeal (fourth NOA) was filed on 14 April 2022 (although there is some controversy between the parties as to whether it was served on the respondents within the time that his Honour had allowed).
Unfortunately, the fourth NOA is very similar to the third NOA and suffers from the same deficiencies. They are, as Elkaim J observed on the last occasion, obvious. They are discussed in some detail in the written submissions filed by counsel for the respondents at [21]–[30], which I will not repeat here.
To put it shortly, the respondents should not be required to try to tease out the real issues, if there are any, from a document of such length and complexity.
(a)First, the fourth NOA manifestly fails to set out “briefly, but specifically, the grounds relied on in support of the appeal” (r 5403(1)(f)). It mixes allegations of error, submissions and evidence, resulting in a prolix and unstructured document. It includes matters that cannot be relevant, such as propositions about the quantum of damages (noting that Murrell CJ decided only issues of liability). It includes a paragraph alleging, in substance, that every paragraph of the reasons of Murrell CJ contains an error.
(b)This is compounded by the fact that the fourth NOA has been filed in two versions. I was told that one version alleges bias on the part of Murrell CJ and the other deals with other matters. During the hearing, Mr Manny said he was content to leave it up to the Court which version (or versions) was proceeded upon. That is unsatisfactory for obvious reasons. A party appealing from a judgment must identify with clarity the case it intends to run.
(c)Secondly, the fourth NOA foreshadows that further evidence will be relied upon but gives no indication of the nature of that evidence (cf r 5403(1)(e)).
(d)Thirdly, the fourth NOA is not accompanied by a case summary (r 5403(2)).
Rather than seeking to have the fourth NOA struck out, the respondents seek an order that the appeal be dismissed. I have power to make such an order, as a single Judge, under r 5604, if (relevantly) the Notice of Appeal does not contain any coherent or arguable ground of appeal; the appellant has failed to comply with relevant rules; or the appellant has failed to comply with a direction of the Court.
The second of these criteria is clearly met: the fourth NOA clearly fails to comply with the Rules, for reasons mentioned earlier. I am also inclined to agree that the fourth NOA does not contain any coherent or arguable ground of appeal, but the two versions of the document are so difficult to follow that I am not sure about this.
However, even though this is the fourth attempt by Mr Manny to articulate the basis for his appeal, and even though Elkaim J specifically alerted Mr Manny to the need to comply with r 5403, I am not persuaded that the appeal should be dismissed at this stage.
The second and third NOAs appear to have been produced and filed in response to concerns raised about the joinder of the corporate appellants. While there was some mention of other deficiencies before Berman AJ, it was only before Elkaim J that significant attention began to be focused on those deficiencies. Some allowance needs to be made for the difficulties faced by self-represented litigants. In the interests of fairness, I think that Mr Manny should have another opportunity to rectify the problems in the organisation and drafting of the Notice of Appeal that I have noted.
I will therefore order that the fourth NOA (in both versions) be struck out. I will grant Mr Manny leave to file a further amended Notice of Appeal.
Although the respondents have not obtained the order they sought, it is appropriate that Mr Manny be ordered to pay their costs of the application. Their criticisms of the fourth NOA are well made and they should not have needed to make those criticisms before the Court today.
Orders
The orders of the Court are:
(1)The application for summary judgment is refused.
(2)The fourth Notice of Appeal in both versions is struck out.
(3)The appellants are granted leave to file a further amended Notice of Appeal by 20 June 2022.
(4)The first appellant is to pay the respondents’ costs in relation to both applications.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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