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Mbuzi v Griffith University

Mbuzi v Griffith University

Case [2015] FCA 862 19 August 2015

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FEDERAL COURT OF AUSTRALIA
Mbuzi v Griffith University [2015] FCA 862

Citation: Mbuzi v Griffith University [2015] FCA 862

Appeal from: Application for leave to appeal: Mbuzi v Griffith University [2014] FCA 1323

Parties: JOSIYAS MBUZI v GRIFFITH UNIVERSITY

File number: QUD 687 of 2014

Judge: RANGIAH J

Date of judgment: 19 August 2015

Catchwords: PRACTICE AND PROCEDURE – applicant seeking to appeal vexatious proceedings order and other orders – whether applicant requires leave to appeal or leave to institute an appeal – whether grounds of appeal are vexatious or abuse of process – leave to file notice of appeal to be granted on some grounds subject to conditions being met

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO, 37AQ, 37AR, 37AS and 37AT
Federal Court Rules 2011 (Cth) rr 11.06 and 36.01

Cases cited: Attorney-General (NSW) v Chan [2011] NSWSC 1315 cited
Fuller v Toms [2015] FCAFC 91 cited
Griffith University v Tang (2005) 221 CLR 99; HCA 7 cited
Hogan v Hinch (2011) 243 CLR 506; HCA 4 cited
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 cited
Mbuzi v Griffith University [2014] FCA 1323 cited
Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35 cited
Walton v Gardiner (1993) 177 CLR 378; HCA 77 cited

Date of hearing: 1 April 2015

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 53

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr P McCafferty

Solicitor for the Respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 687 of 2014

BETWEEN:
JOSIYAS MBUZI
Applicant

AND:
GRIFFITH UNIVERSITY
Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

19 AUGUST 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicant file and serve a draft notice of appeal by 4 pm on 26 August 2015.
2.The draft notice of appeal is to be confined to:
(a)grounds reflecting grounds b, c, d, e, f, g, i, m and o appearing after the words “Error of fact and law as follows” in the draft notice of appeal annexed to the affidavit of the applicant filed on 24 December 2014; and
(b)a further ground to the effect that the respondent did not have a sufficient interest in the matter to warrant an order of the width of the vexatious proceeding order made by the primary judge.

3.The draft notice of appeal is to comply with r 36.01 of the Federal Court Rules 2011 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 687 of 2014

BETWEEN:
JOSIYAS MBUZI
Applicant

AND:
GRIFFITH UNIVERSITY
Respondent

JUDGE:

RANGIAH J

DATE:

19 AUGUST 2015

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The applicant has applied for leave to institute an appeal. In some of the material, he has also described his application as an application for leave…

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 Griffith University

Details

AGLC: Mbuzi v Griffith University [2015] FCA 862
Case: [2015] FCA 862
Decision Date: 19 August 2015

CaseChat Overview and Summary

Mbuzi sought leave to appeal from the Federal Court to the Full Court of the Federal Court, challenging several orders made against him in proceedings between him and Griffith University. The primary judge had made orders for costs, declared that Mbuzi's proceedings were vexatious, and prohibited him from instituting any proceedings against Griffith University without the leave of the court. Mbuzi sought leave to appeal on several grounds, including that the primary judge had erred in declaring his proceedings to be vexatious and that he had not had a fair hearing. The court was required to decide whether Mbuzi required leave to appeal or leave to institute an appeal, and if so, whether the grounds of appeal were vexatious or an abuse of process.

The court found that Mbuzi required leave to appeal because the orders made against him were of a final nature and there were substantial grounds for appeal. The court also found that the grounds of appeal were not vexatious or an abuse of process, but that they should be limited to certain grounds to avoid unnecessary delay and expense. The court ordered that Mbuzi file and serve a draft notice of appeal by a specified time, and that the notice of appeal be confined to certain grounds and comply with the relevant rules. The court also imposed conditions on the appeal, such as requiring Mbuzi to provide a copy of the draft notice of appeal to Griffith University and to comply with certain costs orders.

The court granted leave to appeal on some grounds, subject to certain conditions being met. The court ordered that Mbuzi file and serve a draft notice of appeal by 4 pm on 26 August 2015, and that the notice of appeal be confined to certain grounds and comply with the relevant rules. The court also imposed conditions on the appeal, such as requiring Mbuzi to provide a copy of the draft notice of appeal to Griffith University and to comply with certain costs orders.

Orders

Orders of the court

1. The applicant file and serve a draft notice of appeal by 4 pm on 26 August 2015.

2. The draft notice of appeal is to be confined to:

(a) grounds reflecting grounds b, c, d, e, f, g, i, m and o appearing after the words “Error of fact and law as follows” in the draft notice of appeal annexed to the affidavit of the applicant filed on 24 December 2014; and

(b) a further ground to the effect that the respondent did not have a sufficient interest in the matter to warrant an order of the width of the vexatious proceeding order made by the primary judge.

3. The draft notice of appeal is to comply with r 36.01 of the Federal Court Rules 2011 (Cth).

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mbuzi v Griffith University [2015] FCA 862

Most Recent Citation

Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority [2022] FCA 775

Cases citing this decision · 2 of 2 shown

Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority
[2022] FCA 775 Para 12

…ble and that it itself is not a vexatious proceeding: Crocker, in the matter of Crocker [2019] FCA 432 at [12] (Logan J); Mbuzi v Griffith University [2015] FCA 862 at [16] (Rangiah J). In considering whether leave ought to be granted under s 37AR(2) of the FCA Act in respect of an appeal, a Court will have regar…
Mbuzi v Griffith University
[2016] FCAFC 10 Para 1

…Pursuant to leave granted on 9 September 2015 (see Mbuzi v Griffith University [2015] FCA 862), Mr Mbuzi appeals from a judgment and orders made by the primary judge on 5 December 2014. The primary judge rejected various causes of action relied upon by Mr Mbuzi in respect of a decision to terminate his doctoral c…

View all 2 citing cases →

Cases cited in this decision · 8 of 8 shown

Fuller v Toms
[2015] FCAFC 91 Para 9

…Since I reserved my judgment, the issue has been decided by the Full Court in Fuller v Toms [2015] FCAFC 91. The effect of that judgment is that the applicant does not require leave to appeal, but does require leave to file a notice of appeal. Whether the applicant should be granted leave to file a notice of appea…
Mbuzi v Griffith University
[2014] FCA 1323 Para 2

…The applicant wishes to appeal against the whole of a judgment given by Collier J on 5 December 2014: Mbuzi v Griffith University [2014] FCA 1323. Her Honour ordered that: 1.The amended originating application filed 25 November 2013 of Josiyas Mbuzi is dismissed with costs, to be taxed if not otherwise agreed. 2.P…
Tajjour v New South Wales
[2014] HCA 35 Para 28

…inch (2011) 243 CLR 506; HCA 4 at [92], Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 at 560 and Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35 at [32], [60], [104], [140] and [195]. Her Honour held that a decision of the respondent in respect of the applicant’s PhD candidature pursuant…
Attorney General v Chan
[2011] NSWSC 1315 Para 15

…These categories are not discrete, since each category could properly be described as an abuse of process: Attorney-General (NSW) v Chan [2011] NSWSC 1315 at [33] per Adamson J.…
Hogan v Hinch
[2011] HCA 4 Para 28

…olitical communication operates as a constraint upon legislative power and does not confer personal rights on individuals, relying on Hogan v Hinch (2011) 243 CLR 506; HCA 4 at [92], Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 at 560 and Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35…
Griffith University v Tang
[2005] HCA 7 Para 5

…nt relied on by the applicant. I understand the ground to be that her Honour was not entitled to rely upon the judgment of Griffith University v Tang (2005) 221 CLR 99; HCA 7 to reach or assist her in reaching the conclusion that there was no contract.…
Lange v Australian Broadcasting Corporation
[1997] HCA 25 Para 28

…not confer personal rights on individuals, relying on Hogan v Hinch (2011) 243 CLR 506; HCA 4 at [92], Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 at 560 and Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35 at [32], [60], [104], [140] and [195]. Her Honour held that a decision of the r…
Walton v Gardiner
[1993] HCA 77 Para 16

…ontext of this case it is particularly relevant to note that a proceeding can be regarded as an abuse of process if it is “foredoomed to fail”: Walton v Gardiner (1993) 177 CLR 378; HCA 77 at 393. The vexatious proceedings order…

Legislation cited in this decision · 2

Federal Court of Australia Act 1976 (Cth)
37AM, 37AO, 37AQ, 37AR, 37AS, 37AT 7 mentions (from Para 2)
Federal Court Rules 2011 (Cth)
11.06, 36.01 5 mentions (from Para 24)

Citation:	Mbuzi v Griffith University [2015] FCA 862
Appeal from:	Application for leave to appeal: Mbuzi v Griffith University [2014] FCA 1323
Parties:	JOSIYAS MBUZI v GRIFFITH UNIVERSITY
File number:	QUD 687 of 2014
Judge:	RANGIAH J
Date of judgment:	19 August 2015
Catchwords:	PRACTICE AND PROCEDURE – applicant seeking to appeal vexatious proceedings order and other orders – whether applicant requires leave to appeal or leave to institute an appeal – whether grounds of appeal are vexatious or abuse of process – leave to file notice of appeal to be granted on some grounds subject to conditions being met
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO, 37AQ, 37AR, 37AS and 37AT Federal Court Rules 2011 (Cth) rr 11.06 and 36.01
Cases cited:	Attorney-General (NSW) v Chan [2011] NSWSC 1315 cited Fuller v Toms [2015] FCAFC 91 cited Griffith University v Tang (2005) 221 CLR 99; HCA 7 cited Hogan v Hinch (2011) 243 CLR 506; HCA 4 cited Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; HCA 25 cited Mbuzi v Griffith University [2014] FCA 1323 cited Tajjour v New South Wales (2014) 88 ALJR 860; HCA 35 cited Walton v Gardiner (1993) 177 CLR 378; HCA 77 cited
Date of hearing:	1 April 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr P McCafferty
Solicitor for the Respondent:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 687 of 2014

BETWEEN:	JOSIYAS MBUZI Applicant
AND:	GRIFFITH UNIVERSITY Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	19 AUGUST 2015
WHERE MADE:	BRISBANE

JUDGE:	RANGIAH J
DATE:	19 AUGUST 2015
PLACE:	BRISBANE