Barber v Mbuzi - [2015] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

Barber v Mbuzi [2015] QCA 269

PARTIES:

NATALIE BARBER (in her capacity as the Registrar of the State Penalties Enforcement Registry)

(applicant)v
JOSIYAS MBUZI
(respondent)

FILE NO/S:

Appeal No 5291 of 2015
SC No 3985 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 22 April 2015

DELIVERED ON:

8 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2015

JUDGES:

Fraser and Philippides JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for an extension of time within which to appeal.

2.   Allow the appeal.

3.   Set aside the orders made on 22 April 2015.

4.   Refuse the respondent’s application filed 22 April 2015.

5.   Dismiss the respondent’s proceedings in the Trial Division.

6.   Order the respondent to pay the applicant’s costs (including any reserved costs) of the applicant’s application for an extension of time, this appeal, and the respondent’s proceedings in the Trial Division.

7.   Grant the applicant leave to withdraw the undertaking to the Court recited in the order made on 12 May 2015.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the respondent had been declared a vexatious litigant – where the respondent applied for leave to apply for an injunction to restrain the respondent from suspending his driver’s license – where that application was not served upon the proper parties – where that application did not satisfy the requirements of ss 11, 12, and 13(1) of the Vexatious Proceedings Act 2005 (Qld) – where the primary judge granted the injunction – whether the proposed proceeding was “without reasonable ground” – whether the proceeding was a “vexatious proceeding” – whether the primary judge erred in allowing the application

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant filed an extension of time within which to appeal on 28 May 2015 – where the order of the primary judge was made on 22 April 2015 – where the applicant alleged it had not been made aware of the order until 30 April – where the applicant did not receive a transcript of the proceeding until 20 May 2015 – where the respondent argued that the extension sought should not be granted because it was not in the public interest – where the amount in dispute was $178.00 – where the dispute had been brought in the Supreme Court by the respondent – where the proposed appeal had merit – whether the Court ought grant the extension of time within which to appeal

State Penalties Enforcement Act 1999 (Qld), s 19, s 104, s 105, s 155, s 159
Uniform Civil Procedure Rules 1999 (Qld), r 748
Vexatious Proceedings Act 2005 (Qld), s 6, s 10, s 11, s 12, s 13, Schedule

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 Barber v Mbuzi

Details

AGLC: Barber v Mbuzi [2015] QCA 269
Case: [2015] QCA 269
Decision Date: 8 December 2015

CaseChat Overview and Summary

In the case of Barber v Mbuzi, the respondent sought an injunction to prevent the applicant from suspending their driver’s licence due to an alleged overdue parking fine. The applicant had been previously declared a vexatious litigant, necessitating compliance with specific statutory requirements before initiating any legal proceedings. The primary judge granted the injunction, but the respondent subsequently applied for leave to appeal the decision, which was initially dismissed on procedural grounds. The applicant then appealed this dismissal, arguing that the appeal should be allowed despite the procedural shortcomings.

The key legal issues before the court were whether the primary judge erred in granting the injunction and whether the respondent's application for leave to appeal should have been granted despite procedural deficiencies. The court examined the statutory requirements under the Vexatious Proceedings Act 2005 (Qld) and assessed whether the primary judge adhered to these provisions when granting the injunction. Additionally, the court scrutinized the respondent's application for leave to appeal, considering whether the procedural missteps warranted dismissal of the appeal and whether the public interest considerations justified extending the time limit for the appeal.

The court found that the primary judge had indeed erred by not strictly adhering to the statutory requirements before granting the injunction, as the applicant was not properly served with the application as mandated by s 13(1) of the Act. The court also determined that the respondent's application for leave to appeal should be granted due to the merit in the appeal and the applicant's failure to be adequately informed about the primary judge's order and the subsequent proceedings. The court held that extending the time for the appeal was in the interests of justice, considering the minimal amount in dispute and the public interest in resolving the matter expeditiously.

The court made several orders to address the issues raised. It granted the application for an extension of time within which to appeal, allowed the appeal, and set aside the primary judge's orders. The respondent's application filed on 22 April 2015 was refused, and their proceedings in the Trial Division were dismissed. The respondent was ordered to pay the applicant's costs associated with the application for an extension of time, the appeal, and the respondent's proceedings in the Trial Division. Finally, the applicant was granted leave to withdraw the undertaking to the Court.

Orders

Orders of the court

1. Grant the application for an extension of time within which to appeal.

2. Allow the appeal.

3. Set aside the orders made on 22 April 2015.

4. Refuse the respondent’s application filed 22 April 2015.

5. Dismiss the respondent’s proceedings in the Trial Division.

6. Order the respondent to pay the applicant’s costs (including any reserved costs) of the applicant’s application for an extension of time, this appeal, and the respondent’s proceedings in the Trial Division.

7. Grant the applicant leave to withdraw the undertaking to the Court recited in the order made on 12 May 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The primary judge gave the following reasons for those orders:“This is an application by an … unrepresented litigant who is required to seek leave of the court to issue or serve any court proceedings in Queensland because of a vexatious litigant declaration made by Justice Mullins on the 24th of April 2012. A notice has been issued to the applicant by the State Penalties Enforcement Registry that unless an alleged overdue debt of $284.05 is paid by the 24th of April 2015 his drivers licence will be automatically suspended until the amount is paid. … [T]o the extent that that notice has legal effect, it will be an offence for the applicant under the Transport Operations (Road Use Management) Act 1995 for him to drive a vehicle and he would face heavy penalties to a maximum of $4400 or 12 months’ imprisonment and would also be disqualified from holding or obtaining a drivers licence for a period of up to six months.The debt details in the notice, which is exhibit 1 to the applicant’s affidavit, indicate overstaying a parking time limitation apparently, at least, according to the applicant, at the Griffith University campus on the 29th of November 2013. The applicant denies liability for the fine and therefore for the debt. He says that the first he knew of the alleged fine and debt was when he received the SPER notice shortly after the 9th of April 2015. He seeks to be relieved of any obligation to pay the debt or from any penalty for not having done so until such time as he can challenge liability. Because of his vexatious litigant status, these proceedings are necessary ex parte. I’m prepared to make interim orders for the purpose of ensuring that the applicant’s legal rights are not denied because of his status or because the process has failed.”Consideration The respondent advanced arguments to the effect that the applicant has no right of appeal because there is no existing order against which an appeal might be brought, there is no right of appeal because the decision of the primary judge did not finally determine any issue, there is no right to stay a proceeding in relation to which there is no right of appeal, and the applicant has no right to appeal against its undertaking not to enforce the suspension of the respondent’s licence which the applicant gave at a hearing after the primary judge’s decision. For the following reasons, which substantially accept submissions made by the applicant, the respondent should not have been given leave to commence the proceedings. First, the order made by the primary judge granting the respondent leave to institute proceedings was made in disregard of the mandatory and unambiguous requirements of s 13(1) of the Act. That subsection provides that:“Before the Court grants an application made under section 11 for leave to institute a proceeding, it must … order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application; and … give the applicant and each relevant person, on appearance, an opportunity to be heard at the hearing of the application.”“Relevant person” is defined in s 13(5). The definition includes the proposed respondent to the proceeding, the Attorney General, and the Crown Solicitor. To meet the purposes of the Act, an order for service under s 13(1)(a) should be made only if the judge who hears the application provisionally decides that, subject only to hearing any submission a relevant person might wish to make, it may be appropriate to grant the application. The primary judge, having decided that it was appropriate to grant leave, should not have granted leave without first making the order for service required by s 13(1)(a) and affording the present applicant or any other “relevant person” the opportunity to be heard required by s 13(1)(b).

CITATION:	Barber v Mbuzi [2015] QCA 269
PARTIES:	NATALIE BARBER (in her capacity as the Registrar of the State Penalties Enforcement Registry) (applicant)v JOSIYAS MBUZI (respondent)
FILE NO/S:	Appeal No 5291 of 2015 SC No 3985 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 22 April 2015
DELIVERED ON:	8 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2015
JUDGES:	Fraser and Philippides JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for an extension of time within which to appeal. 2. Allow the appeal. 3. Set aside the orders made on 22 April 2015. 4. Refuse the respondent’s application filed 22 April 2015. 5. Dismiss the respondent’s proceedings in the Trial Division. 6. Order the respondent to pay the applicant’s costs (including any reserved costs) of the applicant’s application for an extension of time, this appeal, and the respondent’s proceedings in the Trial Division. 7. Grant the applicant leave to withdraw the undertaking to the Court recited in the order made on 12 May 2015.
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the respondent had been declared a vexatious litigant – where the respondent applied for leave to apply for an injunction to restrain the respondent from suspending his driver’s license – where that application was not served upon the proper parties – where that application did not satisfy the requirements of ss 11, 12, and 13(1) of the Vexatious Proceedings Act 2005 (Qld) – where the primary judge granted the injunction – whether the proposed proceeding was “without reasonable ground” – whether the proceeding was a “vexatious proceeding” – whether the primary judge erred in allowing the application APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant filed an extension of time within which to appeal on 28 May 2015 – where the order of the primary judge was made on 22 April 2015 – where the applicant alleged it had not been made aware of the order until 30 April – where the applicant did not receive a transcript of the proceeding until 20 May 2015 – where the respondent argued that the extension sought should not be granted because it was not in the public interest – where the amount in dispute was $178.00 – where the dispute had been brought in the Supreme Court by the respondent – where the proposed appeal had merit – whether the Court ought grant the extension of time within which to appeal State Penalties Enforcement Act 1999 (Qld), s 19, s 104, s 105, s 155, s 159 Uniform Civil Procedure Rules 1999 (Qld), r 748 Vexatious Proceedings Act 2005 (Qld), s 6, s 10, s 11, s 12, s 13, Schedule