Manny v Nissen (No 2)

[2023] ACTCA 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Manny v Nissen (No 2)

Citation: 

[2023] ACTCA 20

Hearing Date: 

15 November 2022

Decision Date: 

12 May 2023

Before: 

Loukas-Karlsson, McWilliam and O’Sullivan JJ

Decision: 

See [39]

Catchwords: 

APPEAL – GENERAL PRINCIPLES – In General and Right of

Appeal – whether decision of primary judge final or interlocutory – whether extension of time to file application for leave should be

granted – whether to grant leave to appeal from interlocutory decision – whether primary decision attended with sufficient doubt to warrant reconsideration – leave to appeal refused

Legislation Cited: 

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86
Court Procedures Rules 2006 (ACT) rr 5312, 5405
Residential Tenancies Act 1997 (ACT)

Cases Cited: 

Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012]
ACTCA 37; 7 ACTLR 48

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225

Capital Property Projects (ACT) Pty Ltd v Australian Capital

Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR
44
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147
CLR 246

Charisteas v Charisteas [2021] HCA 29; 273 CLR 289

Coulter v The Queen (1988) 164 CLR 350
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR
397

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR
337

Ensham Resources Pty Limited v Aioi Insurance Company Ltd

[2012] FCAFC 191; 209 FCR 1

Grassby v The Queen (1989) 168 CLR 1
Isbester v Knox City Council [2015] HCA 20; 255 CLR 135
Johnson v Johnson [2000] HCA 48; 201 CLR 488

Manny v Nissen [2022] ACTSC 41 Preston v Dukes [2012] ACTCA 29 Re Luck [2003] HCA 70; 203 ALR 1

Parties: 

Jeff Manny (Appellant)

Beata Nissen (Respondent)

Representation: 

Counsel

Self-represented (Appellant)

R Patrick (Respondent)

Solicitors

Self-represented (Appellant)

Gil-Jones Barker (Respondent)

File Number: 

ACTCA 9 of 2022

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Justice Mossop
Date of Decision:	11 March 2022
Case Title:	Manny v Nissen
Citation:	[2022] ACTSC 41

Court File Number(s): SCA 33 of 2021

THE COURT: 

1․ 

On 11 March 2022, a Justice of this Court refused the appellant leave to appeal to the

Supreme Court from the dismissal of an appeal within the Australian Capital Territory

(ACT) Civil and Administrative Tribunal (Tribunal) made on 9 September 2021: see

Manny v Nissen [2022] ACTSC 41 (primary judgment)

2․ 

The appellant and his wife (Mrs Manny) had brought proceedings in the Tribunal against

a former landlord under the Residential Tenancies Act 1997 (ACT). They alleged they

had been unlawfully evicted and were entitled to compensation as a result of that action

and other alleged breaches, which may collectively be described as relating to the

premises in question being uninhabitable upon commencement of the lease, and a

breach of the lessor’s obligation to repair and maintain the premises.

3․ 

At first instance, save for a relatively minor matter, the Tribunal rejected the claims.

4․ 

An appeal within the Tribunal was dismissed with orders made by the Tribunal at first

instance confirmed.

5․ 

It was from the decision of the Tribunal confirming the orders made at first instance that

the appellant sought leave to appeal to the Supreme Court and which the primary judge

refused.

6․ 

The appellant filed a notice of appeal on 30 March 2022. On 9 September 2022, an

application for leave to appeal the primary judge’s decision was filed. That application

was filed out of time.

7․ 

The parties had each filed written submissions on both the question of leave and the

substantive appeal. Each party was content to rely on their written arguments without

seeking to make oral submissions when the matter was called on.

8․ 

The issues arising in this matter are:

a)	Whether the decision of the primary judge was final or interlocutory;
b)	If interlocutory:
(i) Whether an extension of time should be granted to the appellant within

which to file an application for leave to appeal from the primary judge’s

decision; and

(ii)      Whether leave should be granted to appeal from the primary judge’s

decision; and

c) If yes to issue b) above, whether the appeal should be allowed.

9․ For the reasons which follow, the Court has found:

a)	The decision of the primary judge was interlocutory;
b)	The appellant should be granted an extension of time within which to file an

application for leave to appeal from the primary judge’s decision; and

c) Leave to appeal should be refused.

Final or Interlocutory? - Principles

10․	A threshold issue is whether the primary judgment was final or interlocutory. It has been
observed that the question of whether a decision is final or interlocutory is notoriously
difficult.
11․	In Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25] (McHugh, Kirby and Callinan
JJ) the High Court identified (references omitted):

The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them.

12․	That requires the Court to have regard to the legal rather than the practical effect of the
judgment: Carr v Finance Corporation of Australia Ltd (No 1) (1981)147 CLR 246 at 248
(Gibbs CJ). See also Re Luck [2003] HCA 70; 203 ALR 1 at [4] (McHugh ACJ, Gummow
and Heydon JJ).
13․	The question of whether an order is final or interlocutory was considered by the Court of
Appeal of this Court in Preston v Dukes [2012] ACTCA 29 (Higgins CJ, Penfold and
Rares JJ). The Full Court referred to Re Luck and, amongst other authorities, Coulter v
The Queen (1988) 164 CLR 350 at 356 (Mason CJ, Wilson and Brennan JJ) where the
High Court observed that an application for leave to appeal is a preliminary procedure
which enables an appellate court to control in some measure or filter the volume of work
requiring its attention.
14․	The Full Court reasoned (at [12]) that because an order refusing leave to appeal is refusal
of permission by the Court for a party to institute proceedings by way of appeal in the
Court, it decides no rights on a final basis. Accordingly, an application for leave to appeal
from an order refusing leave to bring proceedings is necessarily an application for leave
to appeal from an order that is interlocutory.
15․	Applying those authorities, the order refusing leave to appeal was clearly interlocutory.
Accordingly, leave to appeal from that order is required.

Should Leave be granted?

16․	There are two sub-issues, both of which are related.
17․	The first concerns an extension of time within which to file the application for leave to
appeal from the primary judgment. There is no doubt that the appellant requires an
extension of time within which to file an application for leave to appeal.
18․	As the Court has noted, the appellant filed a notice of appeal on 30 March 2022. That
was within the time prescribed by r 5405(b) of the Court Procedures Rules 2006 (ACT)
(Rules). However, the application for leave to appeal was filed on 9 September 2022,
which was well outside the seven-day limit required by r 5312 of the Rules.
19․	It seems that the failure by the appellant to file an application for leave to appeal as
opposed to notice of appeal is explicable by the appellant being mistaken as to the
correct procedure, which he sought to remedy as soon as the irregularity was identified
by the respondent. Given he is self-represented, the Court is not critical of the appellant
for making that error. In light of the explanation for the delay, which was not inordinate
and did not occasion any prejudice, the Court extends the time within which the appellant
may file an application for leave to appeal from the decision of the primary judge to on
or before 9 September 2022.
20․	The second sub-issue is whether leave to appeal should be granted.
21․	An appeal to the Supreme Court under s 86 of the ACT Civil and Administrative Tribunal
Act 2008 (ACT) is on a question of fact or law.
22․	The primary judge gave careful and detailed consideration to the application before him,
addressing the original Tribunal decision, the appeal Tribunal decision and the draft
notice of appeal. His Honour concluded that there was no sufficient reason to doubt the
various conclusions reached by the original Tribunal and the appeal Tribunal and the
matters raised in the draft notice of appeal before his Honour did not disclose a
sufficiently arguable case on the matters raised.
23․	The legal principles that apply to the granting of leave to appeal against an interlocutory
decision are not in doubt, having been set out in earlier decisions of this Court, such as
Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land
Authority [2008] ACTCA 9; 2 ACTLR 44 at [30]-[35]. In Ensham Resources Pty Ltd v Aioi
Insurance Company Limited [2012] FCAFC 191; 209 FCR 1 at 11 [58], Lander and Jagot
JJ, after referring to Decor Corporation Pty Ltd v Dart Industries Inc (1991); 33 FCR 397
(Decor), said:

The circumstances in which leave to appeal could be granted from an interlocutory decision are well-known: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor). The applicant must establish that the decision at first instance is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused supposing the decision at first instance to be wrong. Both limbs must be satisfied.

24․	The Court in Décor went on to state at 399 that while those two considerations provide
general guidance which a court should normally accept, there will continue to be cases
raising special considerations.
25․	A detailed summary including the above guiding principles is to be found in Arrow
International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48,
where Refshauge J stated at [58]:

(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

(b)	a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c)	decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d)	the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e)	the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f)	leave may also be granted where the decision is attended with sufficient doubt to warrant

its reconsideration or, to put it another way, where the decision is ‘attended with difficulty

and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries

Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and

(g) it may be a factor favouring the grant of leave that:

(i) the decision involves a matter of public importance; or

(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

26․	In the present case, the primary judge conducted a careful analysis of both the Tribunal’s
decision at first instance and then the decision of the Appeal Tribunal. Having marshalled
the various complaints into three principal grounds of appeal, the primary judge dealt
with each, ultimately concluding at [49]:

In summary, the matters raised in the draft Notice of Appeal do not disclose a sufficiently arguable case that the decision is vitiated by denial of procedural fairness arising by reason of an apprehension of bias to warrant a grant of leave to appeal. Further, if, notwithstanding the form of the grounds in the draft Notice of Appeal, they are considered to involve, instead of an allegation of denial of procedural fairness, a direct assertion of error on the part of the Appeal Tribunal, the grounds of appeal are not sufficiently arguable to warrant a grant of leave to appeal.

27․	The various grounds of appeal to this Court contained in the appellant’s notice of appeal
with respect to the primary judgment are, to a large extent, a recitation of the same
arguments put before the primary judge (as is apparent from his Honour’s consideration
of the draft notice of appeal before him at [33]-[44] of the primary judgment). They repeat
complaints of apprehended bias, prejudice and a denial of procedural fairness without
explaining why the primary judge’s findings on those issues were in error.
28․	We have adopted a similar approach on the application for leave to appeal to that taken
by the primary judge, in that the grounds of appeal have been considered on a wholistic
basis.
29․	The reasons given by the primary judge demonstrate that his Honour dealt with the
underlying gravamen of each of the appellant’s assertions of apprehended bias and
denial of procedural fairness, made at each stage of the proceeding. They included the
following:

a)	The Appeal Tribunal had been involved in another case involving the appellant;
b)	The appellant was not permitted to give evidence;
c)	The appellant was interrupted and the Appeal Tribunal kept arguing with the

appellant;

d) There was a delay of a year before the Appeal Tribunal made the decision and

a further delay in providing reasons;

e) Complaints challenging every paragraph of the Appeal Tribunal’s reasons on

the ground of apprehension of bias.

30․	His Honour rejected each of the allegations (at [37], [39]-[41], [44]), determining in
summary:

a) The mere involvement of a Tribunal member in another matter involving the

appellant is not sufficient to establish any apprehension of bias;

b) There was insufficient evidence to establish what occurred during the hearing,

which also precluded any finding about the appellant being prevented from

giving evidence;

c) While a delay in making a decision and giving reasons is unsatisfactory, it did

not of itself provide a basis for apprehended bias; and

d) The possible existence of errors in the decision of the Appeal Tribunal did not

provide a proper basis for the assertion of an apprehension of bias.

31․	At the heart of the majority of the appellant’s complaints is a concern about apprehended
bias. The general question to ask when assessing whether there is any substance to a
complaint of apprehended bias is whether a fair-minded lay observer might reasonably
apprehend that the decision-maker might not bring an impartial mind to the resolution of
the question required to be decided: see Ebner v Official Trustee in Bankruptcy [2000]
HCA 63; 205 CLR 337 at [6], endorsed more recently in Charisteas v Charisteas [2021]
HCA 29; 273 CLR 289 at [11].
32․	The fair-minded lay observer is assumed to be aware of the nature of the decision and
the context in which it was made, as well as having knowledge of the circumstances
leading to the decision: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135
(Isbester) at [23]. The test is an objective one: Grassby v The Queen (1989) 168 CLR
1 at 20.
33․	The application of the general principle may differ when the decision-maker is not a
judicial officer (as was the case here). How the principle is applied generally depends
upon the nature of the decision and its statutory context, what is involved in making the
decision, and the identity of the decision-maker: Isbester at [23]. This is because the
principle is an aspect of wider principles of natural justice, which have a flexible quality,
and differ according to the circumstances in which a power is exercised: see Isbester at
[23] and the authorities there-cited.
34․	Although the primary judge did not set out the above principles, it is clear that they were
what his Honour applied to the appellant’s arguments. With regard to the first of the
complaints, unless a decision-maker has made conclusive adverse findings of credibility
in relation to a particular party or witness, the mere fact that earlier litigation has been conducted before the person does not give rise to any reasonable apprehension about
how a decision-maker might approach future litigation involving the same party or
witness.
35․	In relation to the complaint about the Tribunal (either at first instance or on internal
appeal) interrupting and arguing with the appellant, a decision-maker is not expected to
remain, “until the moment of pronouncement of judgment, as inscrutable as the
Sphinx”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [13]. Judges or
decision-makers who express tentative views which reflect a certain state of mind are
not on that account alone to be taken to indicate prejudgment. On the contrary, they will
often form tentative opinions on matters in issue, and litigants or applicants are usually
assisted by hearing those opinions and being given an opportunity to deal with
them: Johnson at [13]. In the present case, the Court was not taken to any exchanges
between the appellant and the tribunal member to give rise to any particular concern
about the content of the exchange.
36․	Otherwise, the primary judge’s findings in relation to the remainder of the complaints
were conclusions with which we respectfully agree. Having considered the matters
raised by the appellant in support of the application for leave to appeal, the appellant has
not established that the primary judge’s decision is attended with sufficient doubt to
warrant it being reconsidered by the Court of Appeal.
37․	That being the case, there is no cause to consider the second limb identified above.
38․	Accordingly, the application for leave to appeal should be dismissed. There is no reason
why costs should not follow the event.

Conclusion

39․ The orders of the Court will be:

(1)	The appellant is granted an extension of time within which to file an application
for leave to appeal from the orders of Mossop J delivered 11 March 2022.
(2)	The application for leave to appeal is dismissed.
(3)	The appellant is to pay the respondent’s costs of and incidental to the
application for leave to appeal.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of the Court

Associate:

Date: