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

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.

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.

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.

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.

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.…

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 Shiels

Details

AGLC: Manny v Shiels [2022] ACTCA 22
Case: [2022] ACTCA 22
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application for leave to appeal out of time brought by Jeff Manny and Jeff Manny Pty Ltd (the applicants) against Peter and Warwick Shiels (the respondents). The application sought to appeal a decision of the Supreme Court delivered on 11 June 2010, which concerned defamation proceedings arising from a physical altercation at a karate school and subsequent defamatory statements made by Mr. Manny. The application was filed approximately 12 years after the original judgment.

The central legal issues before the Court were whether to grant leave to appeal out of time, given the significant delay and the fact that the decision under appeal had already been the subject of a prior appeal to the ACT Court of Appeal. The Court also considered the applicants' submissions that the original judgment constituted a grave miscarriage of justice and that Mr. Manny's personal circumstances prevented him from pursuing an appeal earlier. The Court also had to address the issue of service of the application on the respondents, one of whom had died and the other whose whereabouts were unknown.

The Court reasoned that the original judgment of Gray J had been merged with the subsequent judgment of the ACT Court of Appeal in *Shiels v Manny* [2012] ACTCA 22, which had already determined the substantive appeal. Therefore, an appeal from the judgment of Gray J to the Supreme Court would be incompetent. Furthermore, even if the appeal were competent, the Court found that the applicants had failed to provide compelling justification for the extensive delay. Mr. Manny's submissions regarding a miscarriage of justice were largely unsupported assertions, and no explanation was offered for why an appeal had not been sought much earlier. The Court also noted that Mr. Manny had already pursued an appeal to the Court of Appeal, where he had the opportunity to raise his concerns.

Consequently, the Court dismissed the application for leave to appeal out of time. The Court ordered that the first applicant, Jeff Manny, pay the respondents' costs, noting that the amount payable would likely be nominal given the circumstances.

Orders