Manny v Shiels

[2022] ACTCA 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Manny v Shiels

Citation:

[2022] ACTCA 22

Hearing Date:

4 May 2022

DecisionDate:

11 May 2022

Before:

Kennett J

Decision:

Application for leave to appeal out of time is dismissed with costs

Catchwords:

APPEAL – APPLICATION – Application for leave to appeal out of time – where decision under appeal is the subject of a previous appeal that was finally determined – where delay of approximately 12 years in filing application

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 122

Cases Cited:

P v Manny [2010] ACTSC 50

Sheils v Manny [2010] ACTSC 58
Shiels v Manny [2012] ACTCA 22; 263 FLR 61
Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94

Wishart v Fraser (1941) 64 CLR 470

Parties:

Jeff Manny ( First Applicant)

Jeff Manny Pty Ltd ( Second Applicant)

Peter Shiels (First Respondent)

Warwick Shiels (Second Respondent)

Representation:

Counsel

Self-represented ( Applicants)

No appearance ( Respondents)

Solicitors

Self-represented ( Applicants)

No appearance ( Respondents)

File Number:

ACTCA 19 of 2022

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Gray J

Date of Decision:          11 June 2010

Case Title:  P v Manny

Citation: [2010] ACTSC 50

KENNETT J

Introduction

1. The first applicant (Mr Manny) seeks leave to appeal out of time from a judgment of the Supreme Court delivered by Gray J on 11 June 2010 ([2010] ACTSC 50). The company named as the second applicant (Jeff Manny Pty Ltd) was, with Mr Manny, a defendant in the proceedings before Gray J.

1. The plaintiffs in the proceeding (the respondents to this application) were given the pseudonyms P and W as a result of orders made by Gray J prohibiting the publication of their names. However, shortly after his Honour delivered judgment, there was an application for those orders to be vacated which was unopposed ([2010] ACTSC 58); and his Honour vacated the orders. It is therefore possible to refer to the respondents by name.

1. In 2004, Peter Shiels (the first respondent) and his son, Warwick Shiels (the second respondent), operated a karate school in Belconnen. At that time, Peter Shiels was a retired lawyer and Warwick Shiels was a Senior Constable in the Australian Federal Police. Mr Manny’s three sons were students at the karate school. On 27 August 2004, there was a physical altercation at the school. Mr Manny reported the incident to the Police, claiming that he had been assaulted by both Peter Shiels and Warwick Shiels.

1. Peter Shiels alleged that he subsequently received threats from Mr Manny over the telephone. That matter was reported to the Police and Peter Shiels obtained a protection order against Mr Manny.

1. In the weeks that followed, Mr Manny wrote two letters which he sent to the Australian Federal Police. The first letter, dated 1 September 2004, alleged that both Peter and Warwick Shiels had assaulted him on 27 August 2004. The second letter, dated 9 November 2004 and sent on the letterhead of “Jeff Manny Pty Ltd ABN 90 097 755 916”, also referred to the alleged assault and contained further allegations: that Peter Shiels was a paedophile, had molested young boys including Mr Manny’s children, and had threatened to harm Mr Manny and his children; and that Warwick Shiels molested girls and had engaged in “mental and physical assault” against boys. When this letter came to the attention of the respondents, they sued Mr Manny and Jeff Manny Pty Ltd for defamation.

1. There was some confusion surrounding the source of the letter of 9 November 2004 relied on by the respondents in commencing the proceedings. A copy of the letter had come into the possession of Peter Shiels as part of material that he obtained on subpoena in connection with his application for a protection order against Mr Manny. That copy of the letter was subject to an implied undertaking that it would only be used for the purpose of those proceedings. Mr Shiels initially testified that he believed he had received another copy of letter from his son at some stage; however, he later became aware that this was not correct. He then obtained leave from a Magistrate to use, in the defamation proceedings, the copy of the letter that he had obtained on subpoena in the protection order proceedings. Mr Manny and Jeff Manny Pty Ltd sought to re-agitate that issue. The question was removed into the Supreme Court, where it was considered by Gray J. His Honour set aside the grant of leave by the Magistrate, but then made his own order granting leave to the respondents to make use of the letter.

1. A second subject of complaint arose in 2007, after the proceedings had been commenced. Mr Manny had a conversation with David Delfino, a tenant of one of Mr Manny’s companies, in which (according to Mr Delfino’s evidence) he said, among other things, that Warwick Shiels was a paedophile, had had relations with Mr Manny’s wife, and was “nothing but trouble”. In the trial, Mr Manny denied having made these statements; but Gray J was satisfied that he had done so.

1. With respect to the letter of 9 November 2004, his Honour dismissed the claim against Jeff Manny Pty Ltd. So far as the claim against Mr Manny was concerned, his Honour rejected defences of absolute and qualified privilege and triviality, finding that Mr Manny was “activated by express malice” in making the defamatory statements in the letter. He awarded damages of $20,000 to Warwick Shiels. No damages were awarded to Peter Shiels, as he had died before judgement was delivered. A cause of action for defamation does not survive the death of the plaintiff: Civil Law (Wrongs) Act 2002 (ACT) s 122.

1. With respect to the conversation with Mr Delfino, Gray J rejected a claim for qualified privilege and a defence of triviality. He awarded damages of $4,000 to Warwick Shiels.

The application

1. Mr Manny filed the application for leave to appeal out of time on 22 April 2022, almost 12 years after the judgment of Gray J was delivered.

1. An initial difficulty with the application is that it has not been served on either of the respondents. Peter Shiels, as noted above, died some years ago. Noting that no damages were awarded to him (but that, were he still alive, he would clearly be a necessary respondent to any appeal), I put to one side for present purposes questions as to how the Court in an appeal would deal with his absence and whether some attempt should have been made to serve the application on his executors. Mr Manny filed an affidavit describing his attempts to locate Warwick Shiels. He deposes that, after making enquiries at various residences, he telephoned Mr Shiels’ former solicitors and was told that he had left the ACT and they did not know his whereabouts. Taking that evidence at face value, it appears that an attempt has been made to locate Warwick Shiels but these efforts ceased upon being advised that he was no longer in the ACT. No step has been taken to bring the application to the attention of Warwick Shiels.

1. Thus, neither of the respondents appeared at the hearing of the application. Despite my reservations about service, I decided in the interests of efficiency to hear the application on the basis that I would revisit the question of service if otherwise minded to grant leave. I have not found it necessary to resolve the question whether the failure to effect any form of service on the respondents stands in the way of leave being granted because, having heard Mr Manny’s submissions, I would refuse leave in any event.

1. Asked to explain why the Court should permit the judgment of Gray J to be the subject of an appeal after such a long lapse of time, Mr Manny advanced several submissions which, he agreed, could be summarised in three points:

(a)The judgment of Gray J constitutes a grave miscarriage of justice which, in the public interest, should not be allowed to stand.

(b)He was not able to conduct an appeal in 2010 because his marriage and business had collapsed, he had “lost everything” and he was not able to pay his lawyers. From the bar table, he said that he thought he had commenced on appeal but discontinued it.

(c)While he was formerly a very successful businessman, his life since 2010 has been beset by financial and other vicissitudes. He attributes all of these to the outcome of the defamation proceeding before Gray J. He expressed a hope that, if he can have that judgment set aside, the Territory Government will compensate him for the loss of what was once a substantial business empire.

1. Since 2010 Mr Manny has been involved in several other, unrelated, proceedings in this Court, the Supreme Court and the ACT Civil and Administrative Tribunal. He referred me to some of these cases, and claimed that Judges of the Supreme Court had expressed to him the view that the judgment of Gray J should be overturned.

1. One case to which Mr Manny did not refer, however, was an appeal from that very judgement: Shiels v Manny [2012] ACTCA 22; 263 FLR 61. Warwick Shiels appealed from the judgment of Gray J alleging that his Honour had erred in assessing damages, in holding that Jeff Manny Pty Ltd was not responsible for the defamation which appeared on its letterhead, and in not awarding damages to the estate of Peter Shiels. Mr Manny also appealed and was represented by counsel. He initially challenged the finding of malice, but that ground of appeal was abandoned. Ultimately, he sought to have the judgment set aside on two grounds: that Gray J had erred in granting leave to the respondents to use the letter of 9 November 2004 (which, as noted above, had been obtained pursuant to a subpoena in a separate proceeding); and that his Honour had erred in rejecting the submission that the publication of that letter was made on an occasion of absolute privilege.

1. The Court of Appeal dismissed Mr Manny’s appeal and allowed Warwick Shiels’ appeal in part. It substituted a larger award of damages in connection with the letter of 9 November 2004 but rejected the contention that damages should also have been awarded to Peter Shiels.

1. The judgment of Gray J has become merged in the judgment of the Court of Appeal: Wishart v Fraser (1941) 64 CLR 470, 478 (Starke J), 482–483 (Dixon J), 487 (McTiernan J), 491 (Williams J); Theiss Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94, [74] (Spigelman CJ). It is the latter which now binds the parties. The judgment of Gray J is not amenable to any further appeal to this Court; nor could this Court entertain an appeal from its own judgment.

1. For these reasons, an appeal to this Court from the judgment of Gray J would be incompetent and a grant of leave would therefore be futile. Even if that were not so, the fact that Mr Manny has already commenced one appeal (in which he had the opportunity to ventilate all of the concerns he had about the proceeding before Gray J) and argued it to a final judgment would, in the absence of any suggestion of fresh evidence, be an overwhelming reason not to grant leave.

1. In any event, I did not find the arguments advanced by Mr Manny persuasive. A grant of leave to appeal after such a long delay would require compelling justification. While he may have been in a difficult position in the weeks immediately following the judgment of Gray J, no explanation was offered as to why he had not sought leave to appeal long before now. The argument that the judgment constituted a miscarriage of justice was not supported except by Mr Manny’s own assertions about things that had occurred during the trial and in the pre-trial dealings between the parties; and it was not suggested, for example, that Mr Manny had only recently become aware of these matters. Finally, while the judgment was adverse to Mr Manny and no doubt a source of pain and trouble for him, the suggestion that it is the source of all of his problems appears overstated; and, even if it be correct, it does not take the matter anywhere except as an adjunct to his claim of a miscarriage of justice.

1. No separate arguments were put on behalf of Jeff Manny Pty Ltd.  I would not grant that company leave to appeal in any event, given that the claim against it was dismissed by Gray J.

1. The application for leave to appeal out of time will therefore be dismissed. Because the application has been unsuccessful and (in the light of the previous appeal) should not have been made, I will formally order that Mr Manny pay the respondents’ costs, even though the amount payable under that order will most likely be zero.

Orders

1. The orders of the Court will be:

(1)The application for leave to appeal out of time is dismissed.

(2)The first applicant is to pay the respondents’ costs (if any), to be taxed if not agreed.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Kennett

Associate:

Date: