FEDERAL COURT OF AUSTRALIA
Mbuzi v Hird [2022] FCA 1285
Appeal from: Mbuzi v Hird [2022] FedCFam2CG 38 File number: QUD 59 of 2022 Judgment of: RANGIAH J Date of judgment: 31 October 2022 Catchwords: PRACTICE AND PROCEDURE – Appeal from decision of Federal Circuit and Family Court of Australia (Division 2) to dismiss application for review of Registrar’s decision – where Registrar refused to accept an originating application for filing on the basis that it constituted an abuse of process – whether primary judge failed to provide adequate reasons – whether primary judge erred in failing to consider submissions – where error did not give rise to any substantial miscarriage of justice – where originating application was an abuse of process – appeal dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16(1)
Competition and Consumer Act 2010 (Cth) s 138A, Sch 2,
Australian Consumer Law ss 2, 18, 20, 21, 22
Federal Circuit Court of Australia Act 1999 (Cth) s 10(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 131, 134, 217(1), 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 1.31, 1.32, 2.06, 21.01
Federal Court of Australia Act1976 (Cth) ss 19(1), 28(1)(f), 32(1), 59(1)
Federal Court Rules 2011 (Cth) r 2.26
Judiciary Act 1903 (Cth) s 39B
State Penalties Enforcement Act 1999 (Qld) ss 7, 8, 9, 33, 34, 35, 102(1), 103(1)
Cases cited: Australian Securities and Investments Commission vEdensor Nominees Pty Ltd (2001) 204 CLR 559
Bride v Shire of Katanning [2016] FCA 65
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577
Conway v The Queen (2002) 209 CLR 203
Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343
DL v The Queen (2018) 266 CLR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Felton v Mulligan (1971) 124 CLR 367
Fencott v Muller (1983) 152 CLR 570
Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153
Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530
Goodwin v Commissioner of Police [2010] NSWCA 239
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351
Johnson v Johnson (2000) 201 CLR 488
Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Markit Pty Ltd v Commissioner of Taxation (Cth) [2007] 1 Qd R 253
Mbuzi v Hird [2022] FedCFam2CG 38
Miller v Haweis (1907) 5 CLR 89
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Details
- AGLC
- Mbuzi v Hird [2022] FCA 1285
- Case
- [2022] FCA 1285
- Decision Date
CaseChat Overview and Summary
In Mbuzi v Hird, the appellant, Josiyas Mbuzi, sought to appeal a decision of the Federal Circuit and Family Court of Australia (Division 2) that dismissed his application for review of a Registrar's decision to reject his originating application on the grounds that it constituted an abuse of process. The rejected application, which the appellant did not place before the Court, sought orders against the State Penalties Enforcement Registry (SPER) and Australian and New Zealand Banking Group Limited (ANZ). The appellant claimed that SPER had engaged in unconscionable, misleading, and deceptive conduct and that ANZ was negligent in treating SPER's notices as court orders. The Registrar refused to accept the application for filing, citing a lack of jurisdiction and the frivolous nature of the claims. The primary judge upheld the Registrar's decision, and the appellant appealed on several grounds, including unreasonableness, error of law, and denial of procedural fairness.
The court considered the appellant's grounds for appeal, including claims of unreasonableness, error of law, and denial of procedural fairness. The appellant argued that the primary judge had failed to provide adequate reasons, had erred in failing to consider his submissions, and had made contradictory statements in his judgment. The court found that the primary judge had not erred in his decision to dismiss the application as an abuse of process. The court noted that the Registrar had identified two reasons for considering the application an abuse of process: the FCFCOA (Div 2) lacked jurisdiction over the matter, and the claim based on contraventions of the Australian Consumer Law was not applicable to the circumstances. The primary judge's decision was based on the Registrar's reasons, and the court found that the primary judge had not failed to consider the appellant's submissions or apply his own thinking to the matter.
The appeal was dismissed, and the decision of the primary judge was upheld. The court found that the primary judge's reasons were sufficient, and the appellant had not demonstrated that the primary judge had erred in his decision. The court also found that the error, if any, did not give rise to any substantial miscarriage of justice. The appellant's claims were considered to be frivolous and vexatious, and the court found that the application was an abuse of process. The court did not make any further orders.
The court considered the appellant's grounds for appeal, including claims of unreasonableness, error of law, and denial of procedural fairness. The appellant argued that the primary judge had failed to provide adequate reasons, had erred in failing to consider his submissions, and had made contradictory statements in his judgment. The court found that the primary judge had not erred in his decision to dismiss the application as an abuse of process. The court noted that the Registrar had identified two reasons for considering the application an abuse of process: the FCFCOA (Div 2) lacked jurisdiction over the matter, and the claim based on contraventions of the Australian Consumer Law was not applicable to the circumstances. The primary judge's decision was based on the Registrar's reasons, and the court found that the primary judge had not failed to consider the appellant's submissions or apply his own thinking to the matter.
The appeal was dismissed, and the decision of the primary judge was upheld. The court found that the primary judge's reasons were sufficient, and the appellant had not demonstrated that the primary judge had erred in his decision. The court also found that the error, if any, did not give rise to any substantial miscarriage of justice. The appellant's claims were considered to be frivolous and vexatious, and the court found that the application was an abuse of process. The court did not make any further orders.
Orders
Orders of the court
1. The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The appellant now appeals to this Court against the judgment of the primary judge.Background The appellant has not placed the rejected application and other rejected documents before the Court. It seems that the rejected application named only one respondent, “State Penalties Enforcement Registry” (SPER). The content of the rejected application may be inferred from a document that has been placed before this Court, namely a proposed amended application relied upon before the primary judge. The proposed amended application sought to add and seek relief against Australian and New Zealand Banking Group Limited (ANZ) as a respondent. I infer that the rejected application did not otherwise differ from the proposed amended application. The appellant’s proposed amended application sought:·orders declaring a notice given by SPER stating that the appellant owed a debt of $8,458.40 to be invalid;·an injunction restraining SPER and ANZ from causing funds to be removed from the appellant’s bank account in relation to the alleged debt;·a declaration that SPER had engaged in, “unconscionable, misleading and deceptive, false representations and undue harassment”; and·damages. The appellant’s proposed amended application alleged that SPER had engaged in conduct that was, “unconscionable, undue harassment, misleading and deceptive and false representations in its claims that the respondent (sic) owes a debt to it of $8,458.40”, and in saying that the debt, “won’t go away”. The appellant alleged that ANZ was negligent in claiming that notices from SPER requiring that ANZ redirect funds from his bank account are “court orders”. The appellant claimed to have suffered emotional distress and other loss and damage as a result of the conduct of SPER and ANZ. On 21 September 2021, the Registrar wrote to the appellant informing him that the rejected application and accompanying documents would not be accepted for filing. The Registrar stated that, under r 2.26 of the Federal Court Rules, a document may be refused for filing if a Registrar is satisfied that the document is an abuse of the process of the Court. The Registrar then stated:•Whilst perhaps only procedural in nature, the named respondent on the Documents is ‘SPER’, from my perusal of the Documents it is not entirely clear who the named respondent is.•From my perusal of the Documents, you seek relief which includes that the respondent be restrained from suspending your Driver’s Licence and collecting an amount of money issued pursuant to an infringement notice. The Federal Circuit and Family Court of Australia does not have jurisdiction to grant such relief.•From my pursuant of the Documents, you appear to seek to agitate issues that have history in the Supreme Court of Queensland, however you have failed to identify how the Federal Circuit and Family Court of Australia has jurisdiction to consider such matters.•From my perusal of the Documents, you appear to make mention of the “Australian Consumer Law (ACL) 2021 Sections 20; 21; and 22” and that “the respondent has engaged in conduct that is unconscionable, undue harassment, misleading and deceptive...” The Australian Consumer Law and most relevantly the sections on which you seek to rely (ss 20 and 21) relate to conduct ‘in trade or commerce’ in connection with the ‘supply or possible supply of goods and services’. Matters relating to infringements and the cancellation of Drivers Licences are not in trade and commerce.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It can be seen that the Registrar considered that the appellant’s documents were frivolous or vexatious and an abuse of process for two reasons. First, the Registrar considered that the FCFCOA (Div 2) lacked jurisdiction to grant the declaration sought by the appellant against SPER. Second, the Registrar considered that the claim apparently based on contraventions of the Australian Consumer Law must fail. The judgment of the primary judge Before the FCFCOA (Div 2), the Registrar filed a submitting appearance. There was, accordingly, no contradictor. The appellant has not provided the Court with his application to the FCFCOA (Div 2) for review of the Registrar’s decision. The primary judge’s reasons stated at [2] that the decision to refuse to accept the documents was made pursuant to the provisions of r 2.26 of the Federal Court Rules. His Honour at [3] set out the Registrar’s letter informing the appellant of the reasons for her decision. His Honour at [4] reproduced the appellant’s outline of submissions in full. The appellant had submitted that the Registrar had erred in failing to cite any authorities or legislation and in rejecting his documents, whereas the authorities he relied upon showed that the Court had jurisdiction in respect of his matter. The appellant also claimed that there was an apprehension of bias on the part of the primary judge by reason of his Honour’s conduct during a directions hearing. The totality of the primary judge’s findings were contained in the following paragraphs:5For the reasons advanced by Registrar Hird on page 2 of the Refusal Letter of 21 September 2021 (which letter is marked as Exhibit 1 on the Court file), it is found by the Court that the application for review filed on behalf of the applicant is entirely without merit, frivolous and vexatious.6The application attempted to be filed by the applicant was Exhibit JM-1 to the applicant’s affidavit filed on 24 September 2021.7This Court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant.8The Application for Review is accordingly dismissed.The appeal In the appeal, the Registrar filed a submitting appearance and there is consequently no contradictor. The appellant’s Notice of Appeal sets out the following grounds:1.Unreasonableness, in that while the judge below claims (at paragraph 7) that “The court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant”, that claim is not backed by any reasoning or reasons.2.Error of law, in that there is no legislation, precedent, or common law that gives immunity to a state government department and a national/international bank (as the ANZ Bank is one such bank) against Federal laws. In fact, there is precedent of a government department (Queensland Police Service) being subjected to courts at Federal level.3.Falsity, in that the judge below claims (at paragraph 4) that “At the hearing of the application for review, the applicant relied upon written submissions”, when in fact, there was no hearing held as the matter was decided in the judge’s chambers and the judge refused applicant’s specific request to make appearance and oral submissions. Further, the judge’s falsity and self-contradiction are clearly exposed by his own written judgment on the first page it states:a.Date of last submission/s: 9 December 2021b.Date of hearing: 11 November 2021. Even a person with just an average level of intelligence would be left wondering how a hearing on 11 November 2021 could be said to have relied on submissions of 9 December 2021, a long time (over a month) before those said submissions had been written and made available. It is respectfully submitted that anyone would find it concerning that a judge at a federal level would lie in writing on how he had passed judgment.4.Hostility and abuse of judicial power, in that at the time of giving directions for the matter, the judge below falsely accused the applicant of having filed “two affidavits”, when in fact and truth only one affidavit had been filed in support of the application for review. He went so far as even shutting off applicant’s respectful request to correct the record that the duplicated filings were as a result of incompetence and error by court’s own registry staff.5.Refusal and failure by the judge below to consider applicant’s grounds for invoking the jurisdiction of the Federal Circuit and Family Court of Australia even when he was made aware that the respondent had utterly failed to dispute any one of those grounds outlined as marked “JM3” to the affidavit of Josiyas Mbuzi filed on 24 September 2021. Further, at the time of giving directions, the judge below said words to the effect that the applicant did not have to say or give any further statements “because the registrar is obviously right”.6.Failure and refusal by the judge below to apply his own thinking to the matter because he states that he made his decision “For the reasons advanced by Registrar Hird on page 2 of the Refusal Letter of 21 September 2021” (at paragraph 5 of the written judgement).7.Failure by the judge below to realise that the legislative authorities spelt out in the application the applicant seeks to file (marked JM 1 to the affidavit of Josiyas Mbuzi filed and stamped on 9 December 2021), coupled with the principles of common law, sufficiently confer jurisdiction on the Federal Circuit and Family Court of Australia in relation to that duly prepared application.8.Denial of procedural fairness on account of the grounds outlined points 1, 3, 4, 5, 6 and 7 above.
Ratio Decidendi
Legal Principle Established
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