Mbuzi v SV Partners - [2012] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

Mbuzi v SV Partners & Anor [2012] QSC 84

PARTIES:

JOSIYAS MBUZI
(applicant)
v
SV PARTNERS ABN 63 103 951 819
(first respondent)
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(second respondent)

FILE NO:

BS2216 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

5 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2012

JUDGE:

Mullins J

ORDER:

Originating application is dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – ORIGINATING PROCESS – where the applicant started proceeding by originating application – where the applicant claims compensatory damages for negligence, undue harassment and defamation and aggravated and vindicatory damages – 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 – where claims for damages could proceed only if properly pleaded and particularised – where purpose of return date of application was to address the applicant’s choice of originating process – where the amounts claimed for damages did not require the claim to be started in the Supreme Court – whether the choice of incorrect originating process was an abuse of the court’s processes

Bankruptcy Act 1966 (Cth), s 125, s 139L
Bankruptcy Regulations 1996 (Cth), reg 6.12C

Uniform Civil Procedure Rules 1999 (Qld), r 14, r 16, r 155

COUNSEL:

The applicant appeared in person
SG Muller (Sol) for the first respondent
E Goodwin for the second respondent

SOLICITORS:

Rodgers Barnes & Green for the first respondent
Minter Ellison for the second respondent

This proceeding was commenced by originating application filed on 9 March 2012 in which Mr Mbuzi claims the following relief:

“1.          To declare as unlawful and unauthorised, the actions of the           respondents to block the applicant from accessing Family      Assistance payments made by Centrelink into his bank       account kept with Westpac Bank.
2.            An injunction restraining the respondents by themselves, or           any of their members, or otherwise however, from any      further or future blocking of Family Assistance payments          made to the applicant by Centrelink.
3. An order under rule 14 of the Uniform Civil Procedure Rules of 1999.
4.            Compensatory damages of $100,000.00 against the           respondents for negligence. The law, in relation to       negligence, places a duty for persons to conform to                certain standards of conduct recognised by law in their      duties.
5.            Compensatory damages of $100,000.00 against the           respondents for undue harassment. The actions of the respondents to block the applicant from accessing     his                personally-entitled funds were without justification and     they did so in blatant disregard of the law of the land. This is a case of big business institutions trampling upon an                individual’s rights with their own beliefs of impunity.
6. Compensatory damages of $100,000.00 against the second respondent for defamation in relation to imputations made to the Queensland Police Service. The statements made to the police by the second respondent were to the applicant's detriment (Brown, The Law of…

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.

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Details

Case: [2012] QSC 84
Decision Date: 5 April 2012

CaseChat Overview and Summary

The case of Mbuzi v SV Partners involved the applicant, Mbuzi, who commenced a proceeding by way of an originating application. Mbuzi sought compensatory damages for negligence, undue harassment, and defamation, along with aggravated and vindicatory damages. The relief was sought against SV Partners. Mbuzi further sought an order that the proceeding continue as if it had been started by a claim, under rule 14 of the Uniform Civil Procedure Rules 1999 (Qld). The matter came before the court to address the applicant's choice of the originating process, with a particular focus on whether the claims for damages could proceed if properly pleaded and particularised, and whether the choice of the incorrect originating process constituted an abuse of the court's processes.

The court was tasked with determining whether the claims for damages could proceed in the form that they were presented, given the procedural history. It also needed to assess if the amounts claimed for damages necessitated the claim to be commenced in the Supreme Court. Furthermore, the court had to consider whether the applicant's choice of the originating process was an abuse of the court's processes, particularly in light of the procedural rules and the particulars required for such claims.

The court found that the claims for damages could proceed only if they were properly pleaded and particularised, which was not the case in this instance. It also determined that the amounts claimed did not require the claim to be started in the Supreme Court. The court concluded that the applicant's choice of the incorrect originating process did amount to an abuse of the court's processes. Consequently, the court dismissed the originating application.

Orders

Orders of the court

Originating application 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 SV Partners & Anor [2012] QSC 84
PARTIES:	JOSIYAS MBUZI (applicant) v SV PARTNERS ABN 63 103 951 819 (first respondent) WESTPAC BANKING CORPORATION ABN 33 007 457 141 (second respondent)
FILE NO:	BS2216 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	5 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2012
JUDGE:	Mullins J
ORDER:	Originating application is dismissed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – ORIGINATING PROCESS – where the applicant started proceeding by originating application – where the applicant claims compensatory damages for negligence, undue harassment and defamation and aggravated and vindicatory damages – 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 – where claims for damages could proceed only if properly pleaded and particularised – where purpose of return date of application was to address the applicant’s choice of originating process – where the amounts claimed for damages did not require the claim to be started in the Supreme Court – whether the choice of incorrect originating process was an abuse of the court’s processes Bankruptcy Act 1966 (Cth), s 125, s 139L Bankruptcy Regulations 1996 (Cth), reg 6.12C Uniform Civil Procedure Rules 1999 (Qld), r 14, r 16, r 155
COUNSEL:	The applicant appeared in person SG Muller (Sol) for the first respondent E Goodwin for the second respondent
SOLICITORS:	Rodgers Barnes & Green for the first respondent Minter Ellison for the second respondent