Mbuzi v Favell - [2012] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v Favell [2012] QCA 17

PARTIES:

JOSIYAS MBUZI
(applicant)
v
PAUL FAVELL
(respondent)

FILE NO/S:

Appeal No 7520 of 2011
DC No 1021 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

23 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2012

JUDGES:

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

ORDERS:

1.    Leave granted to read and file affidavit of J Mbuzi.

2.    Application for an extension of time to appeal is refused.

3.    Applicant to pay the respondent's costs on the indemnity basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant filed for extension of time within which to appeal and for leave to appeal against judgment for $15,000 damages for defamation, including interests and costs – where proposed appeal five and a half years out of time – where applicant's misconstruction of respondent's evidence does not supply a reasonable explanation for applicant's extraordinary delay – where the applicant argued that there was merit on the grounds of appeal – whether an extension of time within which to appeal should be granted

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent applied for costs on the indemnity basis – where the applicant argued that costs on the indemnity basis was not appropriate because a matter of considerable importance was brought by the applicant – where there was extraordinary delay by the applicant in bringing the application – where no merit in application – where applicant used application as vehicle to make irrelevant, defamatory allegations against the respondent – whether costs should be awarded on the indemnity basis

COUNSEL:

The applicant appeared on his own behalf

R J Anderson for the respondent

SOLICITORS:

The applicant appeared on his own behalf

No appearance for the respondent

FRASER JA: On 24 August 2011, the applicant filed an application for an extension of time within which to appeal and for leave to appeal against a judgment for $15,000 as damages for defamation, with interest and costs, given in the District Court on 18 November 2005.

The proposed appeal is therefore more than five and a half years out of time. See section 118 of the District Court of Queensland Act 1967 (Qld) and rule 748 of the UCPR.

The applicant argued in writing and orally today that his lengthy delay in applying for leave to appeal was explicable by evidence the respondent gave at the trial that he was not interested in getting money from the applicant but simply wanted to clear his name.

That argument fundamentally misconstrued the respondent's evidence. When the respondent was asked in evidence-in-chief what he thought…

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 Mbuzi v Favell

Details

AGLC: Mbuzi v Favell [2012] QCA 17
Case: [2012] QCA 17
Decision Date: 23 February 2012

CaseChat Overview and Summary

Mbuzi v Favell involved a dispute between Mbuzi, the appellant, and Favell, the respondent, concerning a defamation judgment. Mbuzi sought an extension of time to appeal against a damages award of $15,000, including interest and costs. The appeal was proposed more than five years beyond the statutory time limit, which raised the issue of whether the court should grant an extension under s 28 of the Supreme Court of Queensland Act 1991. Mbuzi argued that his delay was due to a misconstruction of Favell's evidence, but this did not provide a reasonable explanation for the significant delay.

The court considered whether the delay was extraordinary and whether there was a reasonable explanation for it. It was determined that the appellant's misconstruction of the respondent's evidence did not justify the delay. Furthermore, the appellant's argument that there was merit in the appeal did not provide a basis for granting an extension of time. Consequently, the court held that the application for an extension of time was refused. Additionally, the respondent applied for costs on an indemnity basis, arguing that the appellant's application was devoid of merit and included defamatory allegations against the respondent. The court found that the appellant's application was not of considerable importance and was made with no merit, justifying an indemnity costs order.

The court's reasoning led to the refusal of the appellant's application for an extension of time and the awarding of costs on an indemnity basis to the respondent. The court granted leave to read and file the affidavit of Mbuzi, refused the application for an extension of time to appeal, and ordered Mbuzi to pay Favell's costs on the indemnity basis. This decision underscores the importance of timely appeals and the consequences of making meritless applications with defamatory allegations.

Orders

Orders of the court

1. Leave granted to read and file affidavit of J Mbuzi.

2. Application for an extension of time to appeal is refused.

3. Applicant to pay the respondent's costs on the indemnity basis.

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

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CITATION:	Mbuzi v Favell [2012] QCA 17
PARTIES:	JOSIYAS MBUZI (applicant) v PAUL FAVELL (respondent)
FILE NO/S:	Appeal No 7520 of 2011 DC No 1021 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	23 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2012
JUDGES:	Fraser and White JJA, and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave granted to read and file affidavit of J Mbuzi. 2. Application for an extension of time to appeal is refused. 3. Applicant to pay the respondent's costs on the indemnity basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant filed for extension of time within which to appeal and for leave to appeal against judgment for $15,000 damages for defamation, including interests and costs – where proposed appeal five and a half years out of time – where applicant's misconstruction of respondent's evidence does not supply a reasonable explanation for applicant's extraordinary delay – where the applicant argued that there was merit on the grounds of appeal – whether an extension of time within which to appeal should be granted APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent applied for costs on the indemnity basis – where the applicant argued that costs on the indemnity basis was not appropriate because a matter of considerable importance was brought by the applicant – where there was extraordinary delay by the applicant in bringing the application – where no merit in application – where applicant used application as vehicle to make irrelevant, defamatory allegations against the respondent – whether costs should be awarded on the indemnity basis
COUNSEL:	The applicant appeared on his own behalf R J Anderson for the respondent
SOLICITORS:	The applicant appeared on his own behalf No appearance for the respondent