Cooper v Mbuzi

[2012] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

Cooper  v Mbuzi [2012] QSC 190

PARTIES:

GREGORY COOPER
(applicant)

v

JOSIYAS ZIFANANA MBUZI
(respondent)

FILE NO/S:

7491/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 July 2012.

JUDGE:

Chief Justice

ORDER:

that Australia and New Zealand Banking Group Limited (ANZ) be added as an applicant;(a)        

that ANZ have leave to make this application;(b)        

that the order of Mullins J of 24 April 2012 be varied to include an order that proceeding 1478/2012 in the District Court, Mbuzi v Australia and New Zealand Banking Group Limited, be stayed; and (c)        

(d)        that the respondent pay the applicant’s costs of and incidental to the application, to be assessed on the standard basis. 

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the respondent in this matter has had a vexatious proceeding order made against him– where the applicant in this matter is the respondent in a matter commenced by the current respondent before the vexatious proceeding order was made against the current respondent - whether the applicant should be granted leave to be added to the earlier vexatious litigant proceedings – whether the earlier order under the Vexatious Proceedings Act 2005 should be amended to stay the other proceeding brought by the respondent.

Vexatious Proceedings Act 2005, s 5, s7

COUNSEL:

W R G Sudgen (sol) for the applicant
The respondent appeared on his own behalf

SOLICITORS:

HWL Ebsworth Lawyers for the applicant
The respondent appeared on his own behalf

1. The Australia and New Zealand Banking Group Ltd seeks orders that it be added (if necessary) to this proceeding, that it be granted leave to make application under s 5(2) of the Vexatious Proceedings Act 2005, that the order of Mullins J of 24 April 2012 be varied under s 7(2) to include an order staying District Court proceeding 1478/2012, and that the respondent pay its costs.

1. On 24 April 2012, Mullins J made an order effectively declaring the respondent a vexatious litigant, prohibiting him from instituting proceedings, and staying a specified proceeding.  The variation sought by ANZ is to add, as a stayed proceeding, District Court proceeding 1478/2012.  That is an appeal by the respondent against the entry of judgment summarily in favour of ANZ in a defamation claim which the respondent had brought against it in the Magistrates Court.

1. The respondent had applied in that proceeding for judgment in default of defence. That was denied on 17 January 2012 because of deficient service of the claim on ANZ (service at a branch, not at the registered office: s 109X(1)(a), Corporations Act 2001). A Magistrate later upheld ANZ’s application for summary judgment, on 20 March 2012.

1. The defamation claim arose in this way.  On 5 September 2011 a sequestration order was made against the respondent (subsequently set aside).  The respondent’s trustees in bankruptcy enquired of ANZ on 16 September 2011 as to accounts held by the respondent.  The ANZ responded on 4 October 2011 that the respondent was the owner of a particular credit card which, with a debit balance of $11,417.88, had been assigned to another entity.  The respondent sought from the Federal Court a stay of the bankruptcy.  Greenwood J refused that application on 14 December 2011.  The ANZ response of 4 October 2011 was in evidence in that proceeding, exhibited to an affidavit by one of the trustees.  The respondent alleged in the defamation claim that ANZ defamed him by contending that he was indebted in that amount to the bank.

1. Urging that his appeal has merit, the respondent placed emphasis on ANZ’s statement, in a communication of 20 December 2011, that information about the alleged debt “should not have been included in our letter” (of 4 October 2011).  ANZ was however obliged to respond to the trustees’ request for information as to the existence of accounts (s 125(1) Bankruptcy Act 1966). The bank’s position appears to be that it was not contending that the respondent was currently indebted to the bank, but that the debt on the card as at the date of the assignment was the specified amount. That is precisely what the letter of 4 October 2011 said.

1. The grounds of the District Court appeal are “error of law and miscarriage of justice”. 

1. As to error of law, the Magistrate concluded that the claim had no reasonable prospect of success.  Having regard to the bank’s obligation under the bankruptcy legislation to respond to the trustees’ inquiry, the defamation claim could not have succeeded. 

1. As to miscarriage of justice, the respondent alleges that he was denied procedural fairness and that the Magistrate was biased. Although Rule 135(1) of the Uniform Civil Procedure Rules provides that a defendant may not, except with leave, take a step until after the filing of a defence, the Magistrate must be taken to have given that leave (in respect of the pursuit of the summary judgment application), which is consistent with her reference to the overriding significance of Rule 5 in overcoming that technical irregularity. I have examined the transcript of the proceeding before the Magistrate and there is no basis for any suggestion of bias.

1. The respondent contended that the present application was procedurally inapt, in that the proceeding is Mr Cooper’s, and ANZ should have brought a freestanding proceeding. It was however convenient that the bank proceed this way, to avoid duplication, and its being added as a party to Mr Cooper’s proceeding is a natural step to facilitate an appropriate variation of the order of Mullins J (s 7(1)). If the application for variation has merit, as I believe it does, then ANZ should be granted leave as contemplated by s 5(2). There is no utility in its being required to commence a separate proceeding. While Mullins J completed the proceeding before her, the statutory facility for variation entitled ANZ to use that proceeding as its vehicle for relief.

1. The respondent urged that the present proceeding was simply unnecessary, and that the District Court should be left to determine the appeal in the ordinary way.  If however the proceeding should be stayed, in the context of the declaration made by Mullins J, that should be done now so that ANZ is spared the expense and inconvenience involved in responding to the appeal.

1. The respondent also pointed out that ANZ was prepared to consider an offer he made in relation to settlement.  One should not infer from ANZ’s courtesy in that regard an acknowledgement that there was any substance to the appeal. 

1. There will be orders: 

(a)        that Australia and New Zealand Banking Group Limited (ANZ) be added as an applicant;

(b)        that ANZ have leave to make this application;

(c)        that the order of Mullins J of 24 April 2012 be varied to include an order that proceeding 1478/2012 in the District Court, Mbuzi v Australia and New Zealand Banking Group Limited, be stayed; and

(d)        that the respondent pay the applicant’s costs of and incidental to the application, to be assessed on the standard basis. 

1. There is no reason why costs should not in that way follow the event.