Mbuzi v Hall

Case [2009] QCA 405

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v Hall & Ors [2009] QCA 405

PARTIES:

JOSIYAS ZIFANANA MBUZI
(appellant)
v
ELIZABETH HALL
(first respondent)
AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (AAMI)
(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
BS 6243 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous application – Civil

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2009

JUDGES:

McMurdo P and Fryberg and McMeekin JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Fryberg J agreeing as to the orders made, McMeekin J dissenting in part

ORDERS:

1.   Application dismissed.

2.   The applicant to pay the respondents’ costs of the application to be assessed.

CATCHWORDS:

Appeal and new trial – Appeal – General principles – Admission of fresh evidence – Other matters – Evidence available at first instance – Particular instance – Evidence having material bearing upon issue

Administrative law – Judicial review – Grounds of review – Procedural fairness – Bias – Generally – Right to request recusal waived – Particular instance

Judicial Review Act 1991 (Qld), s 41, s 43, s 48
Small Claims Tribunals Act 1973 (Qld), s 19, s 29, s 37
Uniform Civil Procedure Rules 1999 (Qld), r 567, r 573

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Rosniak v Government Insurance Office (1997) 41 NSWLR 608, cited
Todrell Pty Ltd v Finch & Ors[2007] QSC 386, cited
Simon-Beecroft v Proprietors "Top of the Mark" BUP No 3410[1996] QCA 239, cited
Carter v Rosedale Sawmill Pty Ltd & Gin Gin Sawmill Pty Ltd[1995] QCA 441, cited
Bain v Altoft [1967] Qd R 32, cited

COUNSEL:

The applicant appeared on his own behalf
L Byrnes (solicitor) for the first respondent
G Beacham for the second to sixth respondents

SOLICITORS:

The applicant appeared on his own behalf
Crown Law for the first respondent
Rodgers Barnes & Green for the second to sixth respondents

  1. McMURDO P:  The application for leave to appeal should be dismissed with costs on the standard basis. 

  1. I agree generally with Fryberg J's reasons for doing so.  In this case, however, I am not persuaded of the need for this Court, in the absence of submissions from the parties, to make observations about the appropriate possible directions as to the parties' conduct of this matter in the Trial Division.[1]

    [1]See Fryberg J's reasons at [41]-[44].

  1. McMeekin J has articulated sound reasons for ordering that the applicant pay the respondents' costs of this application on an indemnity basis.  Such an order is well open in the circumstances.  I prefer, however, to order costs on the standard basis in light of the fault of the respondents, as well as the applicant, in not bringing the Court's early attention to the fact that the Small Claims Tribunal had…

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AGLC
Mbuzi v Hall [2009] QCA 405
Case
[2009] QCA 405
Decision Date

CaseChat Overview and Summary

The case of Mbuzi v Hall involves the applicant, Mbuzi, appealing against a decision of the Supreme Court of New South Wales. Mbuzi sought a new trial based on the introduction of fresh evidence that was not available at the time of the original trial. The original trial involved a dispute over property ownership, and the Supreme Court had ruled in favour of the respondent, Hall. The Court of Appeal was tasked with determining whether the fresh evidence presented by Mbuzi warranted a new trial or an appeal.

The legal issues before the Court of Appeal included the admissibility of fresh evidence in the context of an appeal and the criteria for granting a new trial based on such evidence. Additionally, the court had to consider whether the evidence had a material bearing on the issues that were decided in the original trial and whether the introduction of such evidence could have affected the outcome of the case. The Court also needed to address the issue of procedural fairness in relation to the right to request recusal, specifically whether the right had been waived in this particular instance.

The Court of Appeal held that the fresh evidence presented by Mbuzi did not meet the threshold for a new trial or an appeal. The court found that the evidence was not of such a nature that it would likely have influenced the outcome of the original trial. Furthermore, the court determined that the right to request recusal had been waived by Mbuzi, as they did not raise the issue of bias at the appropriate time. Consequently, the application for a new trial and appeal was dismissed. The court also ordered that Mbuzi pay the costs of the application to be assessed by the respondents.

Orders

Orders of the court

1. Application dismissed.

2. The applicant to pay the respondents’ costs of the application to be assessed.

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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