Mbuzi v Moreton Bay Regional Council
[2012] QDC 136
•8 June 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Mbuzi v Moreton Bay Regional Council [2012] QDC 136
PARTIES:
JOSIYAS MBUZI
(applicant)v
MORETON BAY REGIONAL COUNCIL
(respondent)FILE NO/S:
1581/2012
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
8 June 2012
DELIVERED AT:
Maroochydore
HEARING DATE:
30 April 2012
JUDGE:
Long SC, DCJ
ORDER:
1. On or before 29 June 2012 any application pursuant to the Vexatious Proceedings Act 2005 to stay this proceeding is to be commenced.
2. If no application is made pursuant to paragraph 1 of this order:
(a) It is ordered that pursuant to r 14(2)(a) of the Uniform Civil Procedure Rules 1999 the proceeding continue as if started by claim; and
(b) It is directed that on or before 27 July 2012 the applicant is to file a statement of claim.
3. Costs are reserved.
CATCHWORDS:
DEFAMATION – INJUNCTION – to restrain potential publication by the respondent of material which may be defamatory – such injunctive relief only to be granted “with great caution and only in very clear cases” – publication of material obtained from a public record
PROCEDURE - ORIGINATING PROCESS – where the applicant started proceeding by originating application – where the applicant claims compensatory damages for defamation, negligence, undue harassment and nuisance –– where claims for damages could proceed only if properly pleaded and particularised – where the applicant sought an order under r 14 of the Uniform Civil Procedure Rules 1999 (Qld) that the proceeding continue as if started by claim.
PROCEDURE – VEXATIOUS LITIGANTS – where the applicant has been declared a vexatious litigant by the Supreme Court pursuant to s 6(2) Vexatious Proceedings Act 2005 – where the order prohibited the applicant from instituting any proceedings without prior leave of a Judge of the Supreme Court – where these proceedings were instituted the day before that order was made – whether the respondent should have the opportunity of considering whether these proceedings may be stayed pursuant to the Vexatious Proceedings Act 2005.
LEGISLATION:
District Court of Queensland Act 1967, s 68(1)(a), s 69(2)(b).
Uniform Civil Procedure Rules 1999, r14(2), r 60(2)(b).
Vexatious Proceedings Act 2005, s 6(2)(a), s 7(1)
CASES:
American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Chappell v TCN Channel Nine (1988)14 NSWLR 153.
Cooper v Mbuzi [2012] QSC 105.
Mbuzi v Favell [2011] FCA 1439.
Mbuzi v Favell (No 2) [2012] FCA 311.
COUNSEL:
The applicant appeared on his own behalf.
J.G. Lyons on behalf of the respondent.
SOLICITORS:
The applicant appeared on his own behalf
Moreton Bay Regional Council Legal Services on behalf of the respondent.
The application
By an originating application filed on 23 April 2012, the applicant seeks the following:
“1.An order restraining Moreton Bay Regional Council by itself, its agents or however otherwise from any further or future publication that ‘Josiyas Mbuzi a Bankrupt’.
2.An order for Moreton Bay Regional Council to remove any record it holds or its agents hold alleging that ‘Josiyas Mbuzi a Bankrupt’.
3.An order for Moreton Bay Regional Council to retract its publication referring to Josiyas Mbuzi as ‘a Bankrupt’.
4.Damages against the respondent for defamation in the amount of $50,000.
5.Damages against the respondent for negligent infliction of harm in the amount of $50,000.
6.Damages against the respondent for intentional infliction of harm in the amount of $30,000.
7.Exemplary damages against the respondent in the amount of $30,000.
8.Vindicatory damages against the respondent in the amount of $20,000.
9.Damages against the respondent for undue harassment and nuisance in the amount of $5,000.
10.Interest on the total amount awarded up to payment pursuant to the Supreme Court Act of 1995.
11.An order under rule 14 of the UCPR of 1999.
12.Directions on the future conduct of the matter.
13.Costs to be fixed.
14.Any other order the Court deems fit.”
The application is expressed to be made under UCPR 60(2)(b)[1] and the claims for damages and interest are of a kind and an amount that is within the jurisdiction of the Court, pursuant to s 68(1)(a) of the District Court of Queensland Act 1967. Further and pursuant to s 69(2)(b) of that Act, the Court is therefore also given power to grant injunctive relief.
[1]Which would appear to appropriately allow inclusion of all of these apparently related causes of action, if this court otherwise has jurisdiction to hear them
The circumstances
On the hearing of the application on 30 April 2012,[2] the applicant relied on two affidavits sworn by him and filed respectively on 23 April 2012 and 30 April 2012 (by leave).
[2]Which was the first return date
In the earlier affidavit, the applicant refers to “the offensive material” being published to his “wife, Australia Post workers and others yet unknown to [him]”, and he exhibited a letter written by himself to the Chief Executive Officer of the Moreton Bay Regional Council and dated 6 April 2012. In that letter he makes reference to his wife collecting mail from their mailbox, on 6 April 2012, which included a letter sent in an envelope bearing a marking of the respondent Council and addressed:
“Mrs Vainess B Mbuzi and Tte of the Prop of Josiyas Z Mbuzi A Bankrupt.”
After drawing attention to this publication, the applicant’s letter continues:
“It is needless for me to state the damage your publication has done, especially as it is self-evident that you published it in such a way that tens of people, including my wife, would read it.
As a result of the foregoing, I am demanding the following from you:
1. That you explain the circumstances under which you chose to make that publication.
2. That you apologise for that publication.
3. That you make an undertaking not to publish again the false, injurious and defamatory publication.
4. That you make assurances that you would remove any record of me as ‘a Bankrupt’.
5. That you notify anybody to whom you have communicated that I am a bankrupt.
6. That you pay $20,000 in consideration.
7. That you fulfil the demands in points one to six above by 4:00pm on 15 April 2012.
Please note that if your organisation fails to fulfil the above demands, I will institute legal action against your organisation in the Brisbane District Court without any further notice to you.”
The affidavit filed on 23 April 2012, proceeds to assert:
“5.That the respondent maintained and justified that the offensive publication and has refused and failed to comply with the request I made in writing and in person at the respondent’s Strathpine Customer Service Centre.
6.That any due diligence would have informed the respondent of the false nature of the publication made on the dates concerned.
7.That I fear and suspect that unless this honourable (sic) grants the relief sought, the respondent would persist in the publication of the events of publication as evidenced by his plea in position deposed in point five above.
8.That I would not have resorted to court action had the respondent complied with my written request.”
In the affidavit filed by leave on 30 April 2012 the applicant asserted:
“3.That on 24 April 2012 the Queensland State Crown Solicitor, Mr Gregory Cooper, had attempted to have this proceeding stayed in an application before the Supreme Court of Queensland Judge Mullins, but that he did not succeed as the Judge ruled against him.”
Otherwise, that affidavit proceeds to exhibit a copy of a letter sent to him by the Council Legal Officer and dated 26 April 2012 and enclosing a copy of the Order intended to be sought by the respondent, at the hearing of the application on 30 April 2012. Having regard to that document the applicant contends that an order should be made under rule 14 of the UCPR “by consent”. He also asserts:
“6.That I have legal advice that the respondent is unable to make an application to stay this proceeding as similar relief sought has already been refused by a Supreme Court Judge.”
In order to make more sense of this, it can be noted that the form of order notified to the applicant and in fact, sought by the respondent at the hearing of the application, was as follows:
“1.On or before 31 May 2012 any application pursuant to the Vexatious Proceedings Act 2005 to stay this proceeding is to be commenced.
2.If no application is made pursuant to paragraph 1 of this Order:
(a) it is ordered that pursuant to rule 14(2)(a) of the Uniform Civil Procedure Rules 1999 the proceeding continue as it started by claim; and
(b) it is directed that on or before 29 June 2012 the applicant is to file a statement of claim.
3. Costs be reserved.”
In support of this position, the respondent:
(a)drew attention to the Orders made by Mullins J on 24 April 2012 (that is the day after this application was filed), pursuant to the Vexatious Proceedings Act 2005 in the matter of Cooper v Mbuzi[3]. Although as the respondent conceded, those Orders do not stay this proceeding, it was pointed out that the Orders made by Mullins J can be varied pursuant to s 7 of the VPA and that such a variation might include staying this proceeding pursuant to s 6(2)(a) of that Act; and
(b)otherwise contended, that if this proceeding is to continue, then it is of a kind which should proceed on pleadings.
[3][2012] QSC 105
At the hearing, the respondent was given leave to read and file an affidavit of Mr Conaghan, a solicitor in its Legal Services Department. The additional facts established in that affidavit are that:
(a)the respondent, by letter dated 13 April 2012, responded to the applicant’s letter dated 6 April 2012, in terms that included:
“We refer to your letter of 6 April 2012 and comments regarding the addressee information of our recent rate notice of 4 April 2012.
The Local Government Act 2009, s 94 details that each local government must levy general rates on all rateable land within the local government area. Council’s records reflect the ownership of this land in accordance with current registered title information which is obtained from the Department of Environment and Resource Management (DERM). Council’s Rate Notices are addressed to the name of the registered title owner of the property as advised by DERM.
If you believe the registered title of the property is incorrect, please contact the Valuer-General via their website or telephone 1300 664 217. Changes made to registered title information by DERM are provided to Council as a general course of business.
I trust the above further clarifies this matter for you.”;
(b)On 24 April 2012 the solicitor caused searches to be conducted. First, a title search in relation to the subject property produced a result indicating that the registered owners (each with a half interest as tenants in common) were recorded as:
“The trustees of the property of Josiyas Zifnana Mbuzi a Bankrupt
Bainess Vanda Mbuzi”.
That recording appears to have been referenced to “Dealing No: 714180628 24/11/2011”. Secondly, a national bankruptcy search yielded a nil result in respect of the applicant; and
(c)The specific assertion that;
“7. On 27 April 2012, having regard to the applicant’s requests and to the national bankruptcy search referred to in paragraph 4. above, I caused the respondent’s Team Leader for Rating Services to amend the address details for the subject property so that the words ‘A Bankrupt’ shall no longer appear in the applicant’s rates notices.”
At the hearing, Mr Conaghan was cross-examined by the applicant, in an unsuccessful attempt to diminish the significance of the evidence he had provided an indication of an unlikelihood, in the unresolved circumstances of the applicant’s claims, of any further publication, by the respondent, of the assertion that the applicant is a bankrupt.
Sequestration order
It is apparent that there is a need for these circumstances to be put into some context. However, when I enquired of the applicant, at the hearing of his application, as to whether he had ever been made the subject of a sequestration order, I was met with an assertion that I should recuse myself from hearing this matter because of the tendency I had demonstrated to consider material other than that filed and submitted on the application.
Eventually, that contention was not persisted with and the applicant sought, and was given, the opportunity to present further submissions in reference to an earlier Federal Court decision and to which he had referred in the course of his submissions.
As it was understood, the point which the applicant sought to demonstrate was that the record put in evidence as to the registered owners of the land was erroneous, as it was in contravention of the judgment in Mbuzi v Favell[4] and, in particular, that part of the judgment where Greenwood J observed:
“39.The trustees ought not make any disposition of the interest they assert in the property to any party pending the determination of the appeal without leave of the Court.”
[4][2011] FCA 1439
Reference to that decision not only demonstrates that the applicant’s contention is not sustainable, but also provides some essential context, in understanding this matter:
(a) First, it can be noted that Greenwood J was dealing with an application for a stay of a sequestration order made in the Federal Magistrates Court on 5 September 2011, the applicant having filed an appeal in the Federal Court, against the making of that order; and
(b) Secondly, that the sequestration order arose out of an alleged failure to comply with a bankruptcy notice, issued to the applicant in respect of the unsatisfied judgment given against him on 18 November 2005, in this Court, in an amount of $15,000 (being damages for defamation and interest) and that the ground of the applicant’s appeal to the Federal Court was that he had not been properly served with the bankruptcy notice.
As to the appointment of the trustees to the estate of the applicant and their actions in respect of that estate, Greenwood J recorded:
“12.Upon the making of the Sequestration Order on 5 September 2011, Mr Paul Desmond Sweeney and Mr Jason Shane Cronan were appointed as the joint and several trustees of the estate of Josiyas Mbuzi. On or about 10 October 2011, the appellant’s Statement of Affairs dated 9 October 2011 was lodged with the Official Receiver. The Statement of Affairs does not disclose any secured or unsecured creditors of Mr Mbuzi’s estate. The only assets disclosed in the Statement of Affairs are three bank accounts of Mr Mbuzi with a disclosed combined value of less than $1,000 and a motor vehicle described as a 1998 Toyota Prado (EQP-386) with a estimated value (by Mr Mbuzi) of $15,000.
13.Mr Cronan swore an affidavit dated 18 November 2011 in which he says that upon appointment as trustee of the appellant’s estate he caused searches to be undertaken of any real property owned by Mr Mbuzi. Mr Cronan says that those searches revealed that Mr Mbuzi is the registered owner, together with his wife, Vainess Banda Mbuzi, as joint tenants of a property situated at 3 Eucalypt Court, Warner, Queensland (described as Lot 32 on Survey Plan 112285, County Stanley, Parish Warner, having title reference 50234938). Mr Cronan annexes an historical title search of that property conducted on 21 September 2011. The search reveals that the Australia and New Zealand Banking Group Limited (“ANZ Bank”) holds a registered mortgage over the property.
14.Mr Cronan has caused an informal appraisal to be obtained from a real estate agent of the value of the property. In the opinion of the appraiser, the property is likely to have a market value of between $600,000 to $650,000. Mr Cronan says that ANZ Bank has informed the trustees that the debt secured by the mortgage over the property as at 5 September 2011 was $225,583.70. Mr Cronan annexes to his affidavit a copy of a letter received from ANZ Bank on 4 October 2011 informing the trustees of Mr Mbuzi’s accounts with that bank.
15.On 22 September 2009, the trustees lodged a caveat over the property to protect the estate or interest of the trustees of the estate of Mr Mbuzi in the property. The trustees have instructed their solicitors to lodge a request to record a transmission in bankruptcy so as to recognise the trustees as the registered owners of the property jointly with Mrs Mbuzi.
16.Mr Mbuzi emphatically denies that he has any interest in the property. He contends that although he is a registered proprietor jointly with his wife, the entire beneficial interest in the property is held by Mrs Mbuzi and that he holds his legal estate on trust for his wife. Mr Mbuzi contends that his name was recorded in the title simply as a protective measure so as to provide financial protection for the five children of the union between Mr and Mrs Mbuzi, in the event that Mrs Mbuzi prematurely died. Both Mr and Mrs Mbuzi contend that Mr Mbuzi has not made any contribution to the purchase of the property or repayments of the loan. In that sense, Mr Mbuzi contends that his Statement of Affairs is entirely correct as he has no interest in the property and no secured creditors. The trustees have exchanged correspondence with Mr Mbuzi and also Mrs Mbuzi about these matters.
17.Plainly enough, Mr Mbuzi is jointly registered as a proprietor of the land (with his wife) and equally plainly the trustees in discharge of their duties and obligations as trustees of the estate must act to preserve the apparent interest of the estate of Mr Mbuzi in that property. It may be that on proper inquiry and analysis of all the relevant documents, loan application documents, bank statements and other such documents that Mr Mbuzi will be shown not to have made any contribution to the acquisition of the property or loan repayments in relation to the property. However, that matter remains to be determined and Mr Mbuzi, is required, under the Bankruptcy Act 1966 (Cth), to cooperate with the trustees in answering relevant questions and providing the trustees with such documents as he is able to produce. It may also be shown that notwithstanding that Mrs Mbuzi elected to record Mr Mbuzi as a joint owner of the property that she did not accelerate any beneficial interest in the property to Mr Mbuzi, assuming the threshold facts are made out that Mr Mbuzi made no contribution to the acquisition of any interest in the property.”
It is apparent that in the proceedings before Greenwood J it was recognised that the trustees had taken action to protect their potential interest in the property and that his Honour did not disapprove of this:
“33.Notwithstanding that Mr Mbuzi contends that the entirety of the beneficial interest in the property is held by Mrs Mbuzi, Mr Mbuzi has an obligation to cooperate with the trustees in relation to what is a perfectly proper inquiry about the status of Mr Mbuzi’s interest in the property. In the interests of the estate and the creditors, it is important that the trustees take the necessary steps to protect the apparent or contended interest of the estate in the property in question. It is also important for the trustees to properly deal with all persons who assert a claim against the estate as unsecured creditors. It is also important for the trustees to deal with the ANZ Bank as a party that asserts a secured interest over the property.”
The passage at [39] is not directed at any action of the trustees in asserting entitlement or seeking registration as a registered owner of the property, but rather, any subsequent step of disposition of the interest so asserted. The passage immediately follows his Honour’s essential reasoning in disposing of the application made to him, which included:
“38.It seems to me that the balance of convenience favours the trustees continuing in their role unrestrained so as to preserve the interests of the estate pending the determination of the appeal. In considering the exercise of the discretion as to whether a stay ought to be made, I proceed on the footing that, for the purposes of the application, I will assume that Mr Mbuzi has identified a ground of appeal. I am not satisfied that the contended prejudice identified by Mr Mbuzi outweighs the prejudice to the creditors, and the public interest in the trustees taking such steps as may be necessary between now and the determination of the appeal to address the contention of Mr and Mrs Mbuzi as to where the beneficial interest lies in relation to the property; the interest in the trustees continuing to deal with or respond to challenges to the caveat lodged by the trustees; and, the interest of the trustees continuing to deal with those persons who at least contend that they have proper claims as unsecured creditors against the estate of Mr Mbuzi.”
Some further necessary context is to be found in the decision subsequently made by Collier J in Mbuzi v Favell (No 2)[5] and in disposition of the applicant’s appeal to the Federal Court. The result, on 28 March 2012, was that the appeal was allowed, on the basis that service of the bankruptcy notice had not been adequately proved and the sequestration order was set aside.
[5][2012] FCA 311
It is therefore apparent that when the publication which is the subject of the present application occurred, about a week later, the applicant was not the subject of a sequestration order. However, it is also apparent the respondent claims that he had not only acted in ignorance of this change of circumstance but in reliance upon the record as to registered ownership of the property.
Having been given leave to make further written submissions to this court, the applicant took the opportunity to file an affidavit, partly in an attempt to cast doubt upon the evidence provided by Mr Conaghan and to shore up his claim for injunctive relief. However this additional material is unconvincing and largely hearsay and further contains an unfortunate statement of the applicant’s belief and opinion as to the lack of veracity of Mr Conaghan’s evidence. That opinion is irrelevant.
Vexatious litigant
On the present application, the parties also referred to the decision of Mullins J in Cooper v Mbuzi [2012] QSC 105. For the respondent, this was to demonstrate that an order declaring the applicant as a vexatious litigant was made on 24 April 2012, the day following the institution of this application and to support its contention that there was a potential basis for an order to be sought in variation of the order made on 24 April 2012.[6] Such variation might be to include an order staying all or part of this proceeding.[7] That contention is necessarily made upon the basis that the orders made on 24 April 2012 in the Supreme Court, do not have any effect in respect of this application and it is apparent from the judgment of Mullins J that it contains no reference to this proceeding. However, the applicant contented, in his affidavit filed on 30 April 2012:
“3.That on 24 April 2012, the Queensland State Crown solicitor Mr Gregory Cooper had attempted to have this proceeding stayed in an application before Supreme Court of Queensland Judge Mullins, but that he did not succeed as the Judge ruled against him.”
[6]Pursuant to s 7(1) of the Vexatious Proceedings Act 2005
[7]Pursuant to s 6(2)(a) of the Vexatious Proceedings Act 2005
Accepting that Mullins J was referred to the institution of this proceeding, before she made orders on 24 April 2012, it is unsurprising that Her Honour may have resisted any invitation to make or include orders relating to this proceeding. That of course does not mean that any application for the type of order in the respondent’s contemplation, upon proper consideration of relevant materials, has been determined, finally or otherwise.
There is nothing to prevent the respondent considering its position and/or bringing its position to the attention of the Crown solicitor and the directions proposed by the respondent are only to set a time limit for that consideration and any action to be taken as a result, under the Vexatious Proceedings Act 2005, before the other proposed directions take effect, in order to regularise these proceedings.
Conclusions
The respondent does not oppose an exercise of the discretion provided in UCPR 14 and accordingly seeks no more drastic outcome, other than that the claims be made the subject of a properly pleaded statement of claim. The claims for damages and interest are particularly of a nature, which require pleading in the form of a statement of claim and this may have the effect of identification of the legal basis of each of the separate claims made by the applicant, including what appear to be some of the more unusual aspects of those claims.[8]
[8]Such as the separate and additional claim for “vindicatory damages” and the claim for damages “for undue harassment and nuisance”
In respect of the claims made in the first three paragraphs of the originating application, I am not satisfied that there is any apparent basis for making such orders.
The circumstances outlined above suggest that the letter in issue was, unfortunately sent as addressed, inadvertently to the consequences of the then recent Federal Court judgment. There is nothing before the court to suggest that was done with advertence to the consequences of that order or, more particularly, despite it or with any knowledge that the legal estate of the applicant was no longer vested in his trustee in bankruptcy. The power to grant injunctive relief is discretionary. Usually, an injunction will not be granted if relief in the form of damages would be available as an adequate and final remedy[9], which is likely to be the case here, if there has been or is any further defamation of the applicant resulting in any significant damage.
[9]American Cyanamid Co v Ethicon Ltd [1975] AC 396
Also and quite apart from any considerations as to the likelihood of repetition of publication of any matter defamatory of the applicant, injunctions should only be granted in defamation cases “with great caution and only in very clear cases”.[10] In the circumstances that have been outlined, it is not clear that any publication of the kind complained of , will necessarily result in the applicant obtaining relief by way of damages or otherwise[11] and, on balance, it is not apparent that the injunction sought should now be granted in order to protect the applicant’s reputation.
[10]Chappell v TCN Channel Nine (1988)14 NSWLR 153, at 163G
[11]Although it should be noted that such prospects were not the subject of any debate on the application, an obvious reason being the bare nature of the applicant’s claims, in the form in which they were brought and the terse materials otherwise relied upon
Further there is the obvious situation that the sequestration order was made, although later set aside and nothing to suggest that notification of the change in respect of the legal estate of the applicant consequent upon the making of the sequestration order, was not regularly or duly given to or acquired by the respondent.
Accordingly these facts are a matter of record and there is no conceivable basis for the order sought in paragraph 2 of the originating application.
In respect of the order sought in paragraph 3, it is simply not apparent as to what could be done in order to retract the publication that has occurred.
Accordingly the orders of the court are that:
1.On or before 29 June 2012 any application pursuant to the Vexatious Proceedings Act 2005 to stay this proceeding is to be commenced.
2.If no application is made pursuant to paragraph 1 of this order:
(a)It is ordered that pursuant to r 14(2)(a) of the Uniform Civil Procedure Rules 1999 the proceeding continue as if started by claim; and
(b)It is directed that on or before 27 July 2012 the applicant is to file a statement of claim.
3. Costs are reserved.
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