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

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.

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.

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.

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.

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

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.

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.

Simply put there is no jurisdiction to enter…

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.

Continue reading Manny v Nissen

Details

AGLC: Manny v Nissen [2022] ACTCA 17
Case: [2022] ACTCA 17
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered two applications brought by the appellant, Jeff Manny. The first was an application for summary judgment, and the second was an application for leave to appeal against a judgment delivered in 2010. The court noted that these applications stemmed from long-standing grievances of the appellant.

The legal issues before the court were whether it had the jurisdiction to grant summary judgment in the context of an appeal under section 37J of the *Supreme Court Act 1933* (ACT), and whether the application for leave to appeal could proceed given it had not been served on the respondents and had not been sealed by the Registry.

Regarding the application for summary judgment, the court found it lacked the power to grant such relief as a single judge of appeal under section 37J of the *Supreme Court Act 1933* (ACT). Furthermore, the court determined that the relevant rules of the *Court Procedures Rules 2006* (ACT) did not apply to the proceedings, meaning there was no jurisdiction to enter summary judgment. The application for leave to appeal faced significant procedural hurdles. It had not been served on the respondents, and the court was informed that one respondent had passed away approximately ten years prior, with no indication of whether his estate was a party. The whereabouts of the second respondent were unknown, and he had previously expressed a desire to have no further involvement. Additionally, the application for leave to appeal had not been sealed by the Registry.

Consequently, both the application for summary judgment and the application for leave to appeal were dismissed. The dismissal of the application for leave to appeal was without prejudice to the appellant filing a further application after rectifying the identified issues. The court ordered that the appellant pay the respondents' costs of the summary judgment application, with those costs not to be payable until the conclusion of any appeal.

Orders