Mbuzi v AGL Retail Energy Ltd

[2017] FCA 719

FEDERAL COURT OF AUSTRALIA

Mbuzi v AGL Retail Energy Ltd [2017] FCA 719

File number:

QUD 881 of 2015

Judge:

REEVES J

Date of judgment:

23 June 2017

Catchwords:

PRACTICE AND PROCEDURE – application by respondent to amend name of respondent on interlocutory application – where incorrect party was named as a result of simple error

Held:  application granted

Cases cited:

Clough and Rogers v Frog (1974) 4 ALR 615

Date of hearing:

Determined on the papers

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

6

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondent:

Mr A Barlow

Solicitor for the Respondent:

Geoffrey Mendelson Lawyers

ORDERS

QUD 881 of 2015

BETWEEN:

JOSIYAS MBUZI

Applicant

AND:

AGL RETAIL ENERGY LTD (ACN 074 839 464)

Respondent

JUDGE:	REEVES J
DATE OF ORDER:	23 JUNE 2017

THE COURT ORDERS THAT:

1.Any references to AGL Retail Energy Ltd (ACN 074 839 464) in the Respondent’s interlocutory application filed on 29 July 2016 and in the affidavit of Ching-Fei Chiu filed on 29 July 2016 be amended to AGL Sales Pty Ltd (ACN 090 538 337).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1. At a hearing on 3 February 2017, Mr Barlow, for the respondent, AGL Sales Pty Ltd, made an oral application to amend an interlocutory application it had filed on 29 July 2016.  I refused that application essentially because some months earlier the lawyer for AGL Sales had been told by Edelman J’s Associate that its amendment application should be made “in the ordinary way” and Mr Mbuzi, who was and remains self-represented, claimed that he was entitled to notice in the ordinary way so that he could properly prepare to respond to the application (see Mbuzi v AGL Retail Energy Ltd [2017] FCA 617).

2. After rejecting Mr Barlow’s oral application, I ordered that AGL Sales file an application in the ordinary way seeking the amendment and that the parties should exchange submissions on that question, following which I would determine the matter on the papers.  Accordingly, on 6 February 2017, AGL Sales filed an interlocutory application seeking the following orders:

   1.The Respondent’s interlocutory application filed on 29 July 2016 be amended in accordance with paragraph 2.

   2.Any references to AGL Retail Energy Ltd (ACN 074 839 464) in the Respondent’s interlocutory application filed on 29 July 2016 and in the affidavit of Ching-Fei Chiu filed on 29 July 2016 be amended to AGL Sales Pty Ltd (ACN 090 538 337).

   3.The Applicant pay the Respondent’s costs of this application.

   4.Any other orders as the Court deems fit.

   This application was supported by an affidavit by Ms Ching-Fei Chiu filed on the same date.

3. In its written submissions, AGL Sales submitted that the inclusion of the name “AGL Retail Energy Ltd” instead of “AGL Sales Pty Ltd” in its application filed 29 July 2016 was “simply an error”.  It submitted that Mr Mbuzi has been aware of the error since late 2016, but he has refused to consent to an amendment to correct it.  It also submitted that Mr Mbuzi has not identified any prejudice that he may suffer if the name on the interlocutory application were amended.

4. In his written submissions in response, Mr Mbuzi complained that AGL Sales had “persisted with [the application] for so long” and that he had tried to resolve it without success.  He filed a 74 page affidavit in support of his opposition to the amendment.  In his submissions he asserted that his affidavit “challenges any claims that [AGL Sales] may have in relation to the application for amendment”.  Despite its inordinate length, the main point repeatedly made in Mr Mbuzi’s affidavit was that AGL Sales had not explained why its application to amend should be entertained by the Court.  In it he also made a number of allegations that Ms Chiu had lied in her affidavit about having made this error.  Apart from the fact that these allegations are entirely unsupported by evidence, it is difficult to see why someone admitting to an error would have any incentive to lie about it.  I therefore a reject Mr Mbuzi’s allegations in this respect and accept Ms Chiu’s explanation that the difference in the names on the interlocutory application came about as a result of simple error.

5. As a general principle, a court should allow a party to correct an error or mistake provided it is not fraudulent and it can be corrected without injustice to the other party:  see Clough and Rogers v Frog (1974) 4 ALR 615 at 618.

6. In this instance, having rejected Mr Mbuzi’s claims above, there is not the slightest evidence of fraud and he has not otherwise advanced any prejudice that would result in any injustice being occasioned to him if the amendment is made.  Accordingly, I will make an order to achieve the amendment sought in the application filed by AGL Sales on 6 February 2017.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:        

Dated:        23 June 2017