Mbuzi v Baldwin

Case [2016] FCA 1314

FEDERAL COURT OF AUSTRALIA

Mbuzi v Baldwin [2016] FCA 1314

File number: QUD 721 of 2016
Judge: RANGIAH J
Date of judgment: 9 November 2016
Catchwords: ADMINISTRATIVE LAW – judicial review of Registrar’s decision to refuse to accept application for leave to appeal for filing – whether Registrar erred in concluding that proposed appeal was an abuse of process – whether a procedural direction is a judgment for the purposes of ss 24(1)(a) and 24(1A) of the FCA Act – error of law made by Registrar – proposed application for leave to appeal has no prospects of success – relief under ADJR refused in the exercise of discretion
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16

Federal Court of Australia Act 1976 (Cth) ss 4, 24 and 37AO

Federal Court Rules 2011 (Cth) rr 2.26 and 12.01
Cases cited:

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154

Letten v Templeton [2014] FCAFC 131

Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197

Mbuzi v AGL Sales Pty Limited [2016] FCA 1313

Perovich v Whitton [2016] FCAFC 126

Rahman v Hedge [2012] FCA 68

Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47

Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69
Date of hearing: 6 October 2016
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a submitting notice

ORDERS

QUD 721 of 2016
BETWEEN:

JOSIYAS MBUZI

Applicant
AND:

DISTRICT REGISTRAR HEATHER BALDWIN

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

9 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The applicant’s originating application is dismissed.

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


REASONS FOR JUDGMENT

RANGIAH J:

  1. On 30 August 2016, the applicant, Josiyas Mbuzi, lodged with the Queensland District Registry of this Court an application for leave to appeal against orders made by Edelman J.  On 6 September 2016, the respondent, the Queensland District Registrar, made a decision refusing to accept Mr Mbuzi’s application for filing. 

  2. Mr Mbuzi seeks judicial review of the Registrar’s decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

  3. For the reasons that follow, Mr Mbuzi’s application for judicial review will be dismissed. 

    BACKGROUND

  4. On 25 September 2015, Mr Mbuzi filed an originating application (QUD 881 of 2015) against AGL Retail Energy Limited (“the proceeding”).  Mr Mbuzi claimed that AGL Retail Energy Limited was his electricity supplier and had overcharged him and improperly made demands for payment and issued disconnection notices to him.  Mr Mbuzi sought injunctions and compensatory damages. 

  5. On 20 October 2015, the solicitor acting for AGL Retail…

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Details
AGLC
Mbuzi v Baldwin [2016] FCA 1314
Case
[2016] FCA 1314
Decision Date

CaseChat Overview and Summary

In the Federal Court, Mbuzi sought judicial review of a Registrar’s decision to refuse to accept an application for leave to appeal. The Registrar refused to accept the application for leave to appeal as an abuse of process because the proposed appeal was foredoomed to fail. The applicant contended that the Registrar had erred in concluding that the proposed appeal was an abuse of process, and that the Registrar had made an error of law by concluding that a procedural direction was not a judgment for the purposes of ss 24(1)(a) and 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant contended that the proposed application for leave to appeal had prospects of success. The Registrar’s decision was reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court considered the Registrar’s error in concluding that a procedural direction was not a judgment for the purposes of ss 24(1)(a) and 24(1A) of the FCA Act. The court found that the Registrar’s error was substantial and led to the conclusion that the proposed appeal was an abuse of process. The court held that the Registrar’s conclusion that a procedural direction was not a judgment for the purposes of ss 24(1)(a) and 24(1A) of the FCA Act was wrong. The court found that the Registrar’s error was a jurisdictional one, and that the proposed application for leave to appeal had prospects of success. The court exercised its discretion not to grant relief under the ADJR Act. The applicant’s originating application was dismissed.

Orders

Orders of the court

1. The applicant’s originating application is dismissed.

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

Background

Background to the litigation

For the reasons that follow, Mr Mbuzi’s application for judicial review will be dismissed. BACKGROUND On 25 September 2015, Mr Mbuzi filed an originating application (QUD 881 of 2015) against AGL Retail Energy Limited (“the proceeding”). Mr Mbuzi claimed that AGL Retail Energy Limited was his electricity supplier and had overcharged him and improperly made demands for payment and issued disconnection notices to him. Mr Mbuzi sought injunctions and compensatory damages. On 20 October 2015, the solicitor acting for AGL Retail Energy Limited, sent an email to Mr Mbuzi saying: We have been instructed by our client that the retailer responsible for invoicing for the electricity supplied to your premises is AGL Sales Pty Ltd. You do not have a contract and do not have an account with AGL Retailer (sic) Energy Limited for the electricity supply. Besides our view that your claim was made without a proper basis, fundamentally you have sued the wrong party. Mr Mbuzi then filed an application on 19 November 2015 seeking an order that AGL Sales Pty Limited be substituted as the respondent in place of AGL Retail Energy Limited. On 3 December 2015, Edelman J ordered that:1.The applicant’s originating application filed on 24 September 2015 be amended in the terms set out in his application filed on 18 November 2015, as amended to remove the proposed respondents and to insert as the sole respondent AGL Sales Pty Limited. …5.The respondent to this application be restyled AGL Sales Pty Limited. Despite his Honour’s clear orders, the proceeding has been plagued by confusion as to which entity is the respondent. AGL Retail Energy Limited has continued to be named as the respondent both in documents issued by the Court and filed by the respondent. On 17 February 2016, the parties attended a mediation and resolved the matter. The terms of the settlement required Mr Mbuzi to discontinue the proceeding and that AGL Sales Pty Limited waive any fees for the supply of electricity and other charges for the period up to 31 March 2016. Mr Mbuzi filed a notice of discontinuance of the proceeding on 18 February 2016. The notice stated that it was, “As per deed of settlement of 17 February 2016”. On 18 March 2016, AGL Sales Pty Limited rendered an invoice to Mr Mbuzi for $496.35 for electricity supplied between 16 December 2015 to 16 March 2016. That action seemed inconsistent with the terms of settlement. On 1 April 2016, Mr Mbuzi filed an application to set aside the discontinuance and reopen the proceeding. The application was made on the basis that AGL Sales Pty Limited had “reneged on the terms of the deed of settlement upon which the notice of discontinuance was based”. Mr Mbuzi’s application was listed for directions on 3 May 2016. AGL Sales Pty Limited provided draft minutes of order seeking an order that Mr Mbuzi’s interlocutory application be “struck out”. Edelman J determined to treat the draft minutes of order as an application for summary dismissal of Mr Mbuzi’s interlocutory application. His Honour ordered that the application for summary judgment be dealt with on the papers and also made orders for the filing of written submissions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Registrar has filed a submitting notice pursuant to r 12.01 of the Federal Court Rules. Consequently the Registrar has taken no further part in the proceeding. CONSIDERATION The Registrar’s decision was made pursuant to r 2.26 of the Federal Court Rules. That rule provides:2.26Refusal to accept document for filing – abuse of process or frivolous or vexatious documentsA Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:(a)on the face of the document; or(b)by reference to any documents already filed or submitted for filing with the document. The Registrar concluded that the application for leave to appeal was an abuse of the Court’s process because the application was foredoomed to fail. The Registrar reached that conclusion by relying on a passage apparently taken from the judgment of the Full Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 (“Spirits International”) at [35]. The Registrar attributed to the Full Court the words, “A procedural direction is not a judgment for the purpose s 24A (sic) of the FCA Act”. However, those words do not appear in the Full Court’s judgment. The Registrar erroneously transposed those words into the passage she quoted. The Registrar’s error was a substantial one. It appears to have led the Registrar to think that the Court has no jurisdiction to entertain an application for leave to appeal where orders are procedural in nature and do not conclude any “fundamental issues” between the parties. In fact, the passage at [35] of Spirits International indicates that while particular caution is exercised by appellate courts in reviewing judgments of primary judges relating to matters of practice and procedure, there are no rigid or exhaustive criteria. The view taken by the Registrar that a procedural order cannot be a judgment for the purpose of ss 24(1)(a) and 24(1A) of the FCA Act is wrong. Section 24(1)(a) of the FCA Act confers jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single judge. The word “judgment” is defined in s 4 of the FCA Act to mean, relevantly, “a judgment, decree or order, whether final or interlocutory”. A “judgment” in this context is the formal order made by the Court which disposes of, or deals with, the issue for determination: Letton v Templeton at [17], Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46]. In the present case, the issues before Edelman J were whether directions could be made concerning an interlocutory application for vexatious proceedings orders and other orders brought by an entity that was no longer a party to the principal proceeding, and what directions ought be made. His Honour apparently resolved the issues, making orders for the filing of material and setting down both the application for vexatious proceedings orders and the application for summary dismissal of that application for hearing. The orders disposed of the issues for determination in the directions hearing. There was an interlocutory judgment capable of being the subject of an application for leave to appeal pursuant to s 24(1A) and an appeal under s 24(1)(a) of the FCA Act. By deciding to the contrary, the Registrar was in error.