Mbuzi v Favell - [2007] QCA 393

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v Favell [2007] QCA 393

PARTIES:

JOSIYAS ZIFANANA MBUZI
(applicant)
v
PAUL JOSEPH FAVELL
(respondent)

FILE NO/S:

Appeal No 3029 of 2007
DC No 1021 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2007

JUDGES:

McMurdo P, Williams JA and Jerrard JA
Judgment of the Court

ORDER:

1. Application for leave to appeal refused
2. Applicant to pay the respondent’s costs assessed on an indemnity basis

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – SUPREME COURT PROCEDURE – QUEENSLAND PRACTICE AND RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the applicant had unsuccessfully defended a defamation claim in the District Court – where the applicant sent a letter making defamatory statements in relation to the respondent – where the judge hearing the respondent’s claim held that the Defamation Act 1889 (Qld) s 11 did not apply – where applicant sought to introduce a fee note into evidence after judgment pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – whether r 668 was enlivened

Defamation Act 1889 (Qld), s 11
Uniform Civil Procedure Rules 1999 (Qld), r 668

Mann v O’Neill (1997) 191 CLR 204, applied
Rockett & Anor v The Proprietors “The Sands” Building Unit Plan No. 82 [2002] 1 Qd R 307, applied
Woods v Sheriff of Queensland [1895] QLJR 163, applied

COUNSEL:

The applicant appeared on his own behalf
P J Flanagan SC, with A J Taylor, for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Gail Malone & Associates for the respondent

THE COURT: This was an application for leave to appeal from a decision in the District Court given on 12 March 2007, dismissing Mr Mbuzi’s application dated 5 March 2007, in which Mr Mbuzi asked for orders, purportedly to be made under Uniform Civil Procedure Rules 1999 (Qld) r 668, that orders made in the District Court on 18 November 2005 and 30 November 2005 between the same parties “be dispensed with”.

UCPR r 668 reads as follows:

“[r 668] Matters arising after order
668 (1) This rule applies if –
(a)facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
(b)facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.

(2)On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
(3)Without limiting subrule (2), the court may do one or more of the following -
(a)direct the proceedings to be taken, and the question or issue of fact to be tried or decided, and the inquiries to be…

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 [2007] QCA 393
Case: [2007] QCA 393
Decision Date: 16 November 2007

CaseChat Overview and Summary

In Mbuzi v Favell, the applicant, Mbuzi, sought to appeal the decision of the District Court, which found him liable for defamation against the respondent, Favell. Mbuzi had sent a letter to Favell that contained defamatory statements. The District Court held that section 11 of the Defamation Act 1889 (Qld) did not apply to the circumstances of the case. Mbuzi's appeal to the Supreme Court was focused on whether rule 668 of the Uniform Civil Procedure Rules 1999 (Qld) allowed him to introduce a fee note into evidence post-judgment. The court had to determine whether the rule was applicable in this context.

The legal issue at hand was whether rule 668 of the Uniform Civil Procedure Rules 1999 (Qld) permitted the introduction of a fee note into evidence after judgment in a defamation case. The court needed to consider the scope of rule 668 and whether it was intended to allow such post-judgment evidence in defamation cases. The court also had to assess the relevance and admissibility of the fee note in the context of the appeal.

The Supreme Court found that rule 668 was not intended to permit the introduction of a fee note into evidence after judgment in defamation cases. The court emphasised that the rule was designed to address procedural matters related to the execution and satisfaction of judgments, not to permit the introduction of new evidence. The court held that the fee note did not fall within the scope of rule 668, and therefore, it could not be introduced post-judgment. Consequently, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs assessed on an indemnity basis.

The orders of the Supreme Court were to refuse the application for leave to appeal and to direct that the applicant pay the respondent's costs on an indemnity basis. The court's decision underscored the importance of adhering to the established rules and procedures concerning the introduction of evidence in defamation cases.

Orders

Orders of the court

1. Application for leave to appeal refused

2. Applicant to pay the respondent’s costs assessed on an indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mbuzi v Favell [2007] QCA 393
PARTIES:	JOSIYAS ZIFANANA MBUZI (applicant) v PAUL JOSEPH FAVELL (respondent)
FILE NO/S:	Appeal No 3029 of 2007 DC No 1021 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2007
JUDGES:	McMurdo P, Williams JA and Jerrard JA Judgment of the Court
ORDER:	1. Application for leave to appeal refused 2. Applicant to pay the respondent’s costs assessed on an indemnity basis
CATCHWORDS:	PROCEDURE – COURTS AND JUDGES GENERALLY – SUPREME COURT PROCEDURE – QUEENSLAND PRACTICE AND RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – where the applicant had unsuccessfully defended a defamation claim in the District Court – where the applicant sent a letter making defamatory statements in relation to the respondent – where the judge hearing the respondent’s claim held that the Defamation Act 1889 (Qld) s 11 did not apply – where applicant sought to introduce a fee note into evidence after judgment pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) – whether r 668 was enlivened Defamation Act 1889 (Qld), s 11 Uniform Civil Procedure Rules 1999 (Qld), r 668 Mann v O’Neill (1997) 191 CLR 204, applied Rockett & Anor v The Proprietors “The Sands” Building Unit Plan No. 82 [2002] 1 Qd R 307, applied Woods v Sheriff of Queensland [1895] QLJR 163, applied
COUNSEL:	The applicant appeared on his own behalf P J Flanagan SC, with A J Taylor, for the respondent
SOLICITORS:	The applicant appeared on his own behalf Gail Malone & Associates for the respondent