Mbuzi v. Hall - [2010] QCA 5

[2010] QCA 5

COURT OF APPEAL

CHESTERMAN JA

Appeal No 8519 of 2009
SC No 6243 of 2009

JOSIYAS ZIFANANA MBUZI Applicant

ELIZABETH HALL & OTHERS Respondents

BRISBANE

DATE 04/02/2010

JUDGMENT

CHESTERMAN JA: On 24 December last year the Court of Appeal gave judgment dismissing Mr Mbuzi's application for leave to appeal against the order of White J, which had relevantly removed the second to sixth respondents to the application in this Court as parties to Mr Mbuzi's application for judicial review of the decision made by the first respondent, Magistrate Hall, sitting as the Small Claims Tribunal.

Mr Mbuzi has made an application to a Judge of Appeal pursuant to Rule 668. The relevant part of the Rule appears to be 668(1)(b) which says that "This Rule applies if 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."

The point seems to be this. During the course of argument in the Court of Appeal, Justice Fryberg, a member of the Court, raised some questions of a legal nature with the parties. The parties were, it seems, taken a little by surprise, and counsel for the respondent sought permission to address written submissions to the Court after judgment had been reserved. That leave was given.

Further submissions were delivered by the respondent to the Court and a copy served on Mr Mbuzi on 9 November 2009. Included with the submissions was an affidavit by the respondent's solicitor which annexed a copy of the transcript of proceedings in the Small Claims Tribunal, from which it appeared that Magistrate Hall had in fact made an order removing the second to sixth respondents as parties to the proceedings in the Small Claims Tribunal. That fact is obviously relevant to the question whether Justice White was right to remove the respondents as parties in the proceedings before the Supreme Court for Judicial Review.

Mr Mbuzi responded to the submissions and affidavit of 9 November in a document headed "Research material". In it, he objected to the receipt of the affidavit and the submissions made in reliance on it, saying "Points 11 to 13 which are unrelated to what Honourable Justice Fryberg raised and caused the respondents to fail to answer." “Points 11 to 13” of the submission dealt with the Tribunal’s order to removal of the respondents.

The point is that Mr Mbuzi objected to the receipt of the affidavit and the transcript on the basis that it went beyond the point as to which the Court had given leave to deliver further submissions.

It is clear from the reasons for judgment of Justice Fryberg that the Court considered the respondent's further submissions, the affidavit, the transcript and Mr Mbuzi's objection to it. It nevertheless accepted the submissions and the affidavit and relied upon, in part, the evidence that the Tribunal had removed 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 5
Case: [2010] QCA 5
Decision Date: 04/02/2010

CaseChat Overview and Summary

In the case of Mbuzi v. Hall, Josiyas Zifanana Mbuzi sought to challenge an order made by the Court of Appeal, which had dismissed his application for leave to appeal against an earlier order by Justice White that removed the second to sixth respondents from the judicial review proceedings against Magistrate Hall. Mbuzi sought to rely on Rule 668, which pertains to the discovery of new facts post-judgment that could have warranted a different outcome had they been known at the time. During the appeal, Justice Fryberg raised legal questions, leading to the Court permitting the respondents to submit further evidence, including an affidavit and a transcript of proceedings from the Small Claims Tribunal. Mbuzi objected to the admissibility of this new evidence, arguing it exceeded the scope of the leave granted for additional submissions. Despite Mbuzi's objections, the Court of Appeal considered the new evidence and relied on it partially in their decision. Mbuzi's application under Rule 668 was dismissed as Chesterman JA found no new facts had been discovered that would have entitled Mbuzi to a different order, and he had been aware of and responded to the respondents' submissions.

The central legal issue before the Court of Appeal was whether the new evidence submitted by the respondents, which was not available at the time of the initial judgment, warranted a reconsideration of the case under Rule 668. Mbuzi argued that the Court of Appeal had unfairly received and relied on this new evidence, which included an affidavit and a transcript indicating that the Small Claims Tribunal had previously removed the second to sixth respondents. Mbuzi also contended that the leave granted to the respondents for further submissions did not extend to these specific points and that the affidavit and transcript were forgeries. However, the Court of Appeal found that Mbuzi's objections were not substantiated, and the new evidence was considered in the context of the appeal. The Court concluded that the new evidence did not present facts that, if known earlier, would have altered the outcome of the appeal. Additionally, Chesterman JA held that Rule 668 did not apply to the Court of Appeal's handling of the appeal proceedings.

Chesterman JA dismissed Mbuzi's application, noting that the Court of Appeal's reliance on the respondents' submissions and the new evidence did not constitute unfairness. The Court had already provided Mbuzi with an opportunity to respond to the new evidence, and his objections were deemed insufficient to warrant a different outcome. Chesterman JA further observed that if there were any objections to the manner in which the Court of Appeal handled the appeal, these should have been raised at the time of the hearing. Given that Mbuzi had been aware of the respondents' submissions and had replied to them, the Court found no basis to interfere with its decision. Consequently, Mbuzi's application under Rule 668 was dismissed, and the order of the Court of Appeal was upheld.

Orders