Manny v Nissen

[2022] ACTCA 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Manny v Nissen

Citation:

[2022] ACTCA 17

Hearing Date(s):

20 April 2022

DecisionDate:

20 April 2022

Before:

Elkaim J

Decision:

See [15]

Catchwords:

APPEAL – APPLICATION – Application for leave to appeal –  application for summary judgment –  applications dismissed

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 1145, 1146

Supreme Court Act 1933 (ACT) s 37J

Parties:

Jeff Manny ( Appellant)

Beata Nissen ( Respondent)

Representation:

Counsel

Self-represented ( Appellant)

R Patrick ( Respondent)

Solicitors

Self-represented ( Appellant)

Gil-Jones Baker Solicitors ( Respondent)

File Number(s):

ACTCA 9 of 2022

Decision under appeal: 

Court/Tribunal:             Supreme Court

Before:  Mossop J

Date of Decision:          11 March 2022

Case Title:  Manny v Nissen

Citation: [2022] ACTSC 41

Court File Number(s):   SCA 33 of 2021

Elkaim J

1. There are two applications before the Court today. One is for a summary judgment arising from an appeal from Mossop J delivered on 11 March 2022. The second is an application for leave to appeal against a judgment of Gray J given on 11 June 2010.

1. Both applications can be dealt with quickly. They arise from grievances that the applicant has which are very long-standing. It may be that these grievances have a good foundation. I do not know. What I do know that is that the applications as styled are simply untenable.

1. Dealing first with the application for leave to appeal, the difficulty with this application is that it has not been served on the respondents. Mr Manny has said that he has spoken to or contacted them in the past. Their response is that they are simply not interested. I completely understand that Mr Manny might have come to the conclusion that if they are simply not interested, they should not be told about the application.

1. Unfortunately for him, that is simply not an available position to take. People who are, or who are going to be, the subject of legal proceedings are entitled to know about them and, in a case like this where leave is being sought, are entitled to come to court and oppose that leave if they so wish.

1. I cannot proceed with the application for leave to appeal with it not having been served.

1. Turning then to the application for summary judgment. There are two problems with that application. The first is that in this case I am sitting as a single judge of appeal under s 37J of the Supreme Court Act 1933 (ACT). That section, which gives a single judge certain powers in relation to appeals, does not include the entry of summary judgment. I simply do not have power to make the orders sought.

1. Secondly, the application for summary judgment is purportedly made pursuant to r 1146 of the Court Procedures Rules 2006 (ACT). Unfortunately, r 1146 is subject to r 1145 and simply speaking r 1145 does not apply to the proceedings before this Court.

1. Simply put there is no jurisdiction to enter summary judgment in a matter such as the present.

1. Accordingly, the application in proceeding filed on 7 April 2022 is dismissed.

1. I now return to the application for leave to appeal. Of the two respondents, Mr Manny has informed me that one of the respondents, who is the father of the other, passed away some ten years ago. In respect of the second, Mr Manny says he does not know where he is as he seems to no longer live at his house. Further, Mr Manny bumped into the other respondent about three years ago, and the respondent said in the most clearest terms that he wanted nothing to do with the issue and if he was not left alone, he would get an order against Mr Manny.

1. All of this is coming from the Bar table. First of all, we need to know if there is an estate of the father. If he is dead, he cannot be a respondent. His estate may be the respondent. It depends on what has happened in the probate or other estate proceedings. In respect of the son, there needs to be an attempt of service. If service cannot be effected, then an application for substituted service or some other remedy is required.

1. It has also been pointed out that the application for leave to appeal has also not been sealed by the Registry. Mr Manny says he has the impression the Registry was simply too busy. This may be correct. Yet, it brings me to the conclusion that it is so replete with problems that I should dismiss this application as well. 

1. I will note that I dismiss the application for leave to appeal without prejudice to Mr Manny bringing a further application once he has corrected the issues that have been outlined above.

1. I am going to order costs, but to be not payable until the appeal is completed.

1. Orders:

(a)     The application for summary judgment is dismissed.

(b)     The application for leave to appeal is dismissed.

(c)      The applicant in the summary judgment application is to pay the respondents’ costs of the application, their costs not to be payable until the conclusion of the appeal.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: