Mbuzi v Hall - [2010] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v Hall & Ors [2010] QCA 253

PARTIES:

JOSIYAS ZIFANANA MBUZI
(applicant)
v
ELIZABETH HALL
(first respondent/not a party to the application)
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED
(second respondent)
CLIFFORD ROE CHUTTER
(third respondent)
CHERREL HIRST
(fourth respondent)
MARTIN DOUGLAS EBERLAIN KRIEWALDT
(fifth respondent)
CHRISTOPHER SKILTON
(sixth respondent)

FILE NO/S:

Appeal No 8519 of 2009
SC No 6243 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

McMurdo P

ORDER:

Application filed in the Court of Appeal on 9 September 2010 is dismissed

CATCHWORDS:

PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where applicant filed an application in this Court on 9 September 2010 seeking to set aside three Court of Appeal judgments under Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 668 – where second to sixth respondents filed an application dated 16 July 2010 in the Trial Division seeking that the applicant not be allowed to file any further application in relation to the proceedings without leave of the Court – where the application was heard on 31 August 2010 with the decision reserved but interim orders made including that the applicant “not bring any Application in these proceedings or in relation to these proceedings or the relief sought in them, except with the leave of the Court, prior to the determination of the Application heard on 31 August 2010” – whether it is appropriate for the Court to dismiss the application under r 389A(5) UCPR without hearing from the applicant

Uniform Civil Procedure Rules 1999 (Qld), r 389A(5)

SOLICITORS:

The applicant appeared on his own behalf
Rodgers Barnes & Green for the respondents

McMURDO P: The applicant, Josiyas Zifanana Mbuzi, filed an application in this Court on 9 September 2010 to set aside Court of Appeal judgments of 24 December 2009, 4 February 2010 and 19 February 2010 under Uniform Civil Procedure Rules (UCPR) r 668.

This Court's orders of 24 December 2009,[1] 4 February 2010[2] and 19 February 2010[3] all concerned a proceeding commenced in the Trial Division of this Court: BS6243 of 2009. The order of 4 February 2010 dismissed Mr Mbuzi's application under UCPR r 668 to re-open his appeal the subject of orders on 24 December 2009. The order of 19 February 2010 concerned a costs order against Mr Mbuzi in respect of his application resulting in the order of 4 February 2010.
[1]Mbuzi v Hall & Ors [2009] QCA 405.
[2]Mbuzi v Hall & Ors [2010] QCA 5.
[3]Mbuzi v Hall & Ors [2010] QCA 23.

Mr Mbuzi's application filed in this Court 9 September 2010 was apparently served on the respondents. On 10 September 2010, the solicitors for the second to sixth respondents wrote to the registrar of the Court of Appeal pointing out the following matters.

The…

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 Hall

Details

AGLC: Mbuzi v Hall [2010] QCA 253
Case: [2010] QCA 253
Decision Date: 17 September 2010

CaseChat Overview and Summary

In the case of Mbuzi v Hall, the applicant sought to set aside three judgments of the Court of Appeal under rule 668 of the Uniform Civil Procedure Rules 1999 (Qld). The second to sixth respondents had previously applied for an order that the applicant should not be permitted to file further applications without leave of the Court. The application was heard on 31 August 2010, and interim orders were made, including that the applicant could not bring any application in relation to the proceedings except with leave of the Court until the earlier application was determined. The applicant subsequently filed an application in the Supreme Court on 9 September 2010 to set aside the Court of Appeal judgments. The central legal issue was whether the Court should dismiss the application without hearing from the applicant under rule 389A(5) UCPR.

The court considered the circumstances under which it might dismiss an application without hearing from the applicant. It noted that the interim orders made on 31 August 2010 were still in effect and that the applicant had not sought leave of the Court to file the application. The court held that given the interim orders, the application was made in breach of those orders, and it was appropriate to dismiss the application without hearing from the applicant. The court emphasised that the interim orders were clear and unambiguous, and the applicant had not demonstrated any grounds to set them aside or to justify filing the application. Consequently, the court dismissed the application filed on 9 September 2010.

Orders

Orders of the court

Application filed in the Court of Appeal on 9 September 2010 is dismissed

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.

CITATION:	Mbuzi v Hall & Ors [2010] QCA 253
PARTIES:	JOSIYAS ZIFANANA MBUZI (applicant) v ELIZABETH HALL (first respondent/not a party to the application) AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (second respondent) CLIFFORD ROE CHUTTER (third respondent) CHERREL HIRST (fourth respondent) MARTIN DOUGLAS EBERLAIN KRIEWALDT (fifth respondent) CHRISTOPHER SKILTON (sixth respondent)
FILE NO/S:	Appeal No 8519 of 2009 SC No 6243 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	McMurdo P
ORDER:	Application filed in the Court of Appeal on 9 September 2010 is dismissed
CATCHWORDS:	PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where applicant filed an application in this Court on 9 September 2010 seeking to set aside three Court of Appeal judgments under Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 668 – where second to sixth respondents filed an application dated 16 July 2010 in the Trial Division seeking that the applicant not be allowed to file any further application in relation to the proceedings without leave of the Court – where the application was heard on 31 August 2010 with the decision reserved but interim orders made including that the applicant “not bring any Application in these proceedings or in relation to these proceedings or the relief sought in them, except with the leave of the Court, prior to the determination of the Application heard on 31 August 2010” – whether it is appropriate for the Court to dismiss the application under r 389A(5) UCPR without hearing from the applicant Uniform Civil Procedure Rules 1999 (Qld), r 389A(5)
SOLICITORS:	The applicant appeared on his own behalf Rodgers Barnes & Green for the respondents