Collection House Limited v Mbuzi

[2008] QDC 60

[2008] QDC 60

DISTRICT COURT
CIVIL JURISDICTION

JUDGE KINGHAM

No 3412 of 2005

COLLECTION HOUSE LIMITED ACN	Applicant
010230716
and
JOSIYAS MBUZI	Respondent
BRISBANE ..DATE 25/02/2008

ORDER
HER HONOUR: This is an application by Collection House

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Limited, the second defendant, to have removed from the file in this matter an affidavit by the first plaintiff, Mr Mbuzi, sworn on the 3rd of December 2007.

The application is made on two grounds. Firstly, the	10
affidavit contains evidence regarding communications made in
the course of settlement negotiations and, therefore, subject
to without prejudice privilege which has not been waived. The
second ground is that the affidavit contains material which is
scandalous or oppressive and should be removed under Rule 440.	20
Service of the application on both plaintiffs has been
established by an affidavit of William Frances Boyd sworn
today, which I grant leave to file. It is apparent that
Mrs Mbuzi was aware of this matter as she signed consent	30
orders to adjourn this application last week for hearing today.
This application is not one to which Rule 447 of the Uniform
Civil Procedure Rules applies and therefore the complaint made	40
as to that procedural issue is rejected. The rules do not
prescribe when applications to rule on the inadmissibility of
evidence or to strike-out material which is scandalous must be
made. The case of Re Daintrey Ex Parte Holt (1893) 2 QB 116,
to which I was referred by Mr Mbuzi, is not authority for the	50

proposition that the question of admissibility of evidence
should not be determined before the hearing of the claim.
It is not, in my view, necessary to delay dealing with this 2 ORDER 60

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application until the hearing of the substantive claim by the
plaintiffs against the defendants. I reject the argument that

the application cannot or should not be determined now.

I find that paragraphs 2 to 8 excluding paragraph 6 of the	10
affidavit of Mr Mbuzi deal with matters which are subject to
without prejudice privilege. That privilege extends to
communications as well as to documents. The passage that
Mr Mbuzi referred me to in the case of Mercantile Mutual
Custodians Proprietary Limited v Village Nine Network	20
Restaurants & Bars Pty Ltd (2001) 1 QdR 276 is not authority for the proposition that the privilege only attaches to documents. It is without doubt the privilege extends to oral communications.
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There can be no dispute that the material is subject to
privilege. On the face of Mr Mbuzi's affidavit itself, the
conversations took place in the context of an attempt to reach
settlement of the dispute the subject of these proceedings.
There is nothing to raise a question whether it was a genuine	40
attempt to settle the action.
Mr Mbuzi seeks to lead the evidence contained in his affidavit
to establish, he says, that there is a pattern of misleading
and deceptive conduct by the representatives for the	50

defendants. Mr and Mrs Mbuzi's claims relate to complaints
about the circumstances in which and the consequences of the
actions of the defendants in recovering a debt and 3 ORDER 60

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repossessing a vehicle.

The pattern of misleading and deceptive conduct alleged by
Mr Mbuzi, therefore, appears to be in relation to the conduct

of litigation on behalf of both the defendants in the Supreme	10
and District Courts. As such, the affidavit is directed not
to the matters in dispute arising from the Mbuzi's claims, but
to the way in which the defences to those claims have been
undertaken. So it goes to the conduct of the representatives,
not to the matters that are the subject of the litigation.	20
It is clear that Mr Mbuzi has a dim view of the conduct of a
number of lawyers involved in these proceedings. His purpose
in filing the affidavit was, he said, to demonstrate to the
defendants that they "should not use deception to try to	30
coerce him into settling these proceedings". The proceedings before this Court do not depend on any determination as to the conduct of the solicitor who was the subject of this affidavit.
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The proper forum for any complaint of professional conduct is
the Litigation Services Commission. Mr Mbuzi has exercised
his rights in that forum and this Court has no function in
considering Mr Mbuzi's complaint, in reviewing material placed
before the Commission, or in reviewing any decision there	50

made.
It is entirely inappropriate for the Court to allow this forum 4 ORDER 60

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to be used to maintain these allegations. Firstly, they are
allegations which are irrelevant to the proceedings before it.
Secondly, they are allegations in relation to which it has no
jurisdiction or function. Thirdly, the allegations have

already been investigated and determined by the Tribunal	10
specifically constituted to deal with such matters.
The allegations against the former solicitor of the second
defendant in paragraphs 8, 10 and 11 of Mr Mbuzi's affidavit
are scandalous in the sense that they are irrelevant to any	20
issue in these proceedings, they are opinions not evidence, and are an attack on a person who is not a party to the proceedings.
I find that the grounds for removal of the affidavit from the	30
file are made out and I grant the order sought.
...
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HER HONOUR: I am satisfied the costs on this application are discrete in the sense that the merits of the costs argument cannot be affected by the outcome of the substantive case.
...	50
HER HONOUR: So, the order will be in terms of the draft except that I will delete "indemnity" and insert instead the word "standard" in paragraph 2.

5 ORDER 60 10

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6 ORDER 60