FEDERAL COURT OF AUSTRALIA

Mbuzi v AGL Sales Pty Limited [2018] FCAFC 226

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    Mr Josiyas Mbuzi has appealed against two substantive orders made, together with ancillary orders, in the original jurisdiction on 19 March 2018. The substantive orders are:

(1)    in accordance with s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), he be prohibited from commencing proceedings against AGL Sales Proprietary Limited;

(2)    that Order 2 of the orders made by Edelman J on 5 July 2016, be set aside and he pay AGL Sales’ costs of his application filed 30 March 2016 on an indemnity basis from and including 3 May 2016.

2    In his reasons for judgment, the learned primary judge offered, between paras 2 and 29 a procedural history in respect of the factual background to the making of each of the orders under challenge. There is no apparent error in that procedural history. I therefore adopt it and set it out below:

2    This matter has a long and complex procedural history. Before outlining it, I should note at the outset that Mr Mbuzi has been self-represented throughout this proceeding. So far as I am aware, he has no relevant qualifications or training as a lawyer.

3    On 24 September 2015, Mr Mbuzi filed an originating application naming AGL Retail Energy Limited as the respondent. In that proceeding, Mr Mbuzi claimed that, as his electricity supplier, AGL Retail Energy had overcharged him, had made improper demands for payment and had improperly issued disconnection notices to him. He sought an injunction and compensatory damages.

4    On 20 October 2015, the solicitor representing AGL Retail Energy sent an email to Mr Mbuzi advising him that the entity with which he had an electricity supply contract and the entity that was responsible for invoicing him was AGL Sales Pty Limited. Accordingly, that company, and not AGL Retail Energy, was the appropriate respondent to his proceeding.

5    Partly acting on that advice, on 18 November 2015, Mr Mbuzi filed an application seeking to substitute AGL Sales for AGL Retail Energy as a respondent. As well, he sought to add two other AGL entities as respondents.

6    On 3 December 2015, Edelman J made orders amending Mr Mbuzi’s originating application to remove AGL Retail Energy Limited as the respondent and to replace it with AGL Sales Pty Limited, as the sole respondent. Despite these orders, as will appear below, this proceeding has continued to be plagued by issues surrounding the name of the respondent.

7    On 17 February 2016, the parties attended a mediation in an attempt to resolve their dispute. That mediation was successful and it resulted in a Deed of Settlement (the Deed) being entered into. The Deed required Mr Mbuzi to discontinue this proceeding and for AGL Sales to waive any fees and other charges owing by Mr Mbuzi for the supply of electricity for the period up to 31 March 2016. Specifically, cl 5 of the Deed provided:

AGL Sales Pty Limited waives any further fees, including fees for the supply of electricity and for final billing, and any other such charges in respect of the applicant for the period up to 4pm 31 March 2016.

8    As required by the Deed, Mr Mbuzi filed a notice of discontinuance of this proceeding on 17 February 2016.

9    However, approximately one month later, on 18 March 2016, AGL Sales rendered an invoice to Mr Mbuzi for the amount of $496.35 for electricity supplied for the period 16 December 2015 to 16 March 2016.

10    In response, on 30 March 2016, Mr Mbuzi filed an application seeking to set aside the notice of discontinuance and to reopen the proceeding on the ground that AGL Sales had “reneged on the terms of the [Deed] upon which the notice of discontinuance was based”. He also sought to claim various fees and charges and $10,000 in damages.

11    Shortly thereafter, AGL Sales realised its mistake in issuing this invoice to Mr Mbuzi. Accordingly, on 6 April, Ms Ching-Fei Chiu, the solicitor for AGL Sales, sent the following email to Mr Mbuzi:

We have been instructed by our client that they are obligated under the National Energy Retail Rules to send customers periodical invoices so that the customers may track their electricity consumption.

Our client is aware of its obligations under the settlement agreement. The invoice is not due until 8 April 2016 and our client applied a credit for the amount of the invoice on 1 April 2016. Your account balance with our client remains $0 (account statement attached).

Our client, nevertheless, apologises for not sending any explanations with the invoice sent to you in March or advising you as to their intention to credit the invoice at an earlier opportunity. Our client also apologises for any concerns and confusions caused in this regard.

However, our client remains of the view that you still have received the benefits under the settlement agreement and, therefore, cannot agree to pay you the amount demanded in your email on 31 March 2016.

We take this opportunity to note that the settlement agreement required you to transfer your account to another electricity retailer by 31 March 2016 … If you transfer your electricity account to another retailer on or before 27 April 2016, our client will waive all charges incurred prior to 27 April 2016.

…

We trust the above is sufficient to address your concerns and again resolve the matter. We, therefore, invite you to withdraw your application to re-open the subject proceeding, failing which our client will have no choice but to oppose the application and this correspondence will be produced on the question of costs.

12    Based on the admissions and clarifications contained in Ms Chiu’s email above, at a case management hearing for Mr Mbuzi’s application on 3 May 2016, AGL Sales made an application to summarily dismiss it. Edelman J made orders providing for the exchange of submissions with respect to AGL Sales’ application and for that matter to be dealt with on the papers. In the submissions it subsequently filed, AGL Sales indicated, for the first time, that it also wished to apply for a vexatious proceedings order against Mr Mbuzi under s 37AO of the Federal Court Act.

13    In a judgment delivered on 5 July 2016, Edelman J dismissed Mr Mbuzi’s application with costs. However, his Honour held that Mr Mbuzi should be given an opportunity to be heard in relation to AGL Sales’ application for indemnity costs and he also directed that its vexatious proceedings order application should be brought formally (see Mbuzi v AGL Retail Energy Limited [2016] FCA 590 at [36]–[37]).

14    On 19 July 2016, Mr Mbuzi sought leave to appeal the judgment of Edelman J. That application was dismissed by Rangiah J on 9 November 2016 (Mbuzi v AGL Sales Pty Limited [2016] FCA 1313).

15    The present application was filed on 29 July 2016. The following orders were sought in it:

1.    Of the Orders made by this honourable Court on 5 July 2016:

    a.    Order 2 be set aside; and

b.    Order 2 be replaced by this order: “The Applicant pay the Respondent’s costs of and incidental to the Applicant’s Application dated 30 March 2016 on an indemnity basis”;

2.    Pursuant to s.37AO of the Federal Court of Australia Act 1976 (Cth), the Applicant be prohibited from instituting any proceedings in any Registry of the Federal Court of Australia against:

a.    AGL Retail Energy Ltd (ACN 074 839 464);

b.    Any employee, officer, or agent of AGL Retail Energy Ltd (ACN 074 839 464);

    c.    Geoffrey Mendelson Lawyers; and

d.    Any employee, officer, or agent of Geoffrey Mendelson Lawyers.

3.    The Applicant pay the Respondent’s costs of this application, on an indemnity basis.

16    It will be apparent from Orders 2a. and 2b. above that this application related to AGL Retail Energy, not AGL Sales. This turned out to constitute AGL Sales’ second mistake in this proceeding (see below at [22]).

17    Mr Mbuzi responded by filing his own application on 11 August 2016 in which he sought to have AGL’s application dismissed. The respondent in that application was also stated to be AGL Retail Energy.

18    On 19 August 2016, Edelman J made directions at a case management hearing to have both applications heard on 3 February 2017 (or provisionally in December 2016).

19    On 30 August 2016, Mr Mbuzi filed an application for leave to appeal against the orders made by Edelman J on 19 August 2016.

20    On 6 September 2016, the District Registrar refused to receive the abovementioned application for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules) on the ground that “there is no basis upon which any appeal against those directions could succeed”.

21    On 12 September 2016, Mr Mbuzi filed an application seeking a review of that decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). That application was subsequently dismissed by Rangiah J in November 2016 (see Mbuzi v Baldwin [2016] FCA 1314).

22    This proceeding was transferred to my docket in early 2017. At the commencement of the hearing of the application on 3 February 2017, counsel for AGL Sales made an oral application to amend the name of the respondent in the application from AGL Retail Energy Limited to AGL Sales Pty Limited. He informed me that the application had been filed in the former name by mistake. As I recorded in my judgment on that application ([2017] FCA 617 at [2]):

When the lawyers for AGL Sales Pty Ltd realised this mistake had been made, they communicated with Mr Mbuzi and informed him of it. At the same time, they sought Mr Mbuzi’s consent to the application being amended. He responded that he was not willing to consent to that amendment. AGL Sales Pty Ltd’s lawyers then sent an email to the chambers of Edelman J, who was the judge then dealing with the matter. In that email they sought to have the application amended informally by his Honour in chambers. The associate to Edelman J responded by email on 12 September 2016, stating, among other things, that “If Geoffrey Mendelson Lawyers wish to bring an application on behalf of their client, then that application should be filed in the ordinary way.”

23    Because AGL Sales had not filed its application “in the ordinary way” as it was directed to do (see above), and because Mr Mbuzi claimed to be taken by surprise, I dismissed its oral application and ordered it to file an application in the ordinary way (see Mbuzi v AGL Retail Energy Ltd [2017] FCA 617). I also ordered the parties to exchange submissions on that application, once filed, and indicated I would deal with it on the papers. This failure to follow the direction to file its application in the ordinary way marked AGL Sales’ third mistake in this proceeding.

24    AGL Sales filed the abovementioned application on 6 February 2017. That application was granted on 23 June 2017 (see Mbuzi v AGL Retail Energy Ltd [2017] FCA 719). On 29 July 2017, Mr Mbuzi filed an application for leave to appeal the orders made on 23 June 2017. That application was dismissed by Derrington J on 8 August 2017.

25    In the meantime, on 7 March 2017, Mr Mbuzi filed an application in which he sought the following orders:

1    To correct an error and omission in the order prepared by the court concerning the hearing on 3 February 2017 before Judge Reeves so as:

a.    To remove AGL Sales Pty Ltd ACN 074 839 464 as a respondent party and instead put AGL Retail Energy Ltd ACN 074 839 464.

b.    To insert an additional order stating: “By close of business on 20 March 2017, the applicant is to file any submissions and affidavit material in reply to respondent’s application and its supporting material”.

  2.    Costs be reserved.

  3.    Any other orders the court deems fit.

(Errors in original)

26    Furthermore, on 16 March 2017, Mr Mbuzi filed an application for an extension of time and for leave to appeal my orders of 3 February 2017.

27    By letter dated 17 March 2017, a Deputy District Registrar refused to accept the latter application for filing. On 20 March 2017, Mr Mbuzi filed an application seeking judicial review of that decision under the ADJR Act. In September 2017, that application was dismissed by Collier J (see Mbuzi v Tredwell [2017] FCA 1137).

28    During a case management hearing held on 18 August 2017, I dismissed Mr Mbuzi’s application of 7 March 2017, together with his oral applications for an adjournment of the hearing and for my recusal. I then set the present application down for hearing.

29    On 31 August 2017, Mr Mbuzi filed an application for leave to appeal the orders I made on 18 August 2017. On 14 November 2017, Collier J ordered, by consent, that the order for costs I made against Mr Mbuzi be vacated and that Mr Mbuzi be granted leave to discontinue this application.

3    His Honour’s observation at para 2 that the matter has “a long and complex procedural history” is, with respect, apt. At the heart of it, though, is a particular disagreement as between Mr Mbuzi and the present respondent, AGL Sales. That disagreement, as the procedural history reveals, at one stage was resolved by a deed of settlement.

4    Unfortunately, and as can occur for many of us in ordinary experience in dealing with modern corporations, there looks to have been an internal miscommunication somewhere within the AGL Group which led to a demand being made for a sum of money, contrary to the terms of the deed of settlement. Understandably enough, at least in the first instance, that caused a degree of aggravation, apparently, for Mr Mbuzi. AGL Sales, as the procedural history reveals, was relatively prompt in its acknowledgement of that mistake. The result, though, was a flurry of litigation.

5    The particular litigation which came to be considered for the purposes of whether or not to make an order in respect of Mr Mbuzi under s 37AO of the Federal Court of Australia Act 1976 (Cth) was summarised by the learned primary judge at para 30 of his reasons for judgment:

30    For the purposes of the present application, and having regard to the procedural history set out above, AGL Sales contended that the following six proceedings constituted vexatious proceedings that had been instituted and/or conducted by Mr Mbuzi within the terms of s 37AO(1) of the Federal Court Act:

(a)    Mr Mbuzi’s application filed on 30 March 2016 to reopen the proceeding which Mr Mbuzi conducted for no cause from on or about 6 April 2016 when Ms Chiu advised him of AGL Sales’ mistake, as demonstrated by the judgment of Edelman J (see at [10]–[13] above);

(b)    Mr Mbuzi’s application filed on 19 July 2016 for leave to appeal the judgment of Edelman J which had no prospect of success, as demonstrated by the judgment of Rangiah J (see at [14] above);

(c)    Mr Mbuzi’s application filed on 12 September 2016 for judicial review of the District Registrar’s decision which had no prospect of success, as demonstrated by the judgment of Rangiah J (see at [21] above);

(d)    Mr Mbuzi’s interlocutory application filed on 7 March 2017 which had no prospect of success, as demonstrated by its dismissal on 18 August 2017 (see at [25] and [28] above);

(e)    Mr Mbuzi’s application filed on 20 March 2017 for judicial review of the Deputy District Registrar’s decision which had no prospects of success, as demonstrated by the judgment of Collier J (see at [26]–[27] above); and

(f)    Mr Mbuzi’s application filed on 29 July 2017 for leave to appeal my decision of 23 June 2017 which had no prospects of success, as demonstrated by the decision of Derrington J (see at [24] above).

Of these, the proceedings at paras (a), (b), (d) and (g) came to inform the order which his Honour made under s 37AO.

6    As to the principles which attend the decision as to whether or not to make such an order, his Honour adopted a summary which he had earlier given in Mathews v State of Queensland [2015] FCA 1488 at [81] – [92] as a summary of the relevant principles. Having considered that summary, I respectfully agree with his Honour’s view as to it being a correct summary of relevant principle.

7    His Honour then, as s 37AO makes apparent, considered in sequence the particular statutory criteria found in that section, namely:

(a)    frequently;

(b)    instituted or conducted proceedings;

(c)    vexatious proceedings;

(d)    in Australian courts or tribunals.

8    What followed thereafter was, with respect, an unremarkable series of findings of fact against those particular statutory criteria. It is well possible, having regard to the particular proceedings identified by his Honour from those listed at para 30 of his reasons for judgment, to regard these as having the quality of vexatiousness and, in turn, to find that Mr Mbuzi has instituted or conducted proceedings in Australian courts frequently. So that is why the order made under s 37AO is unremarkable.

9    I would also observe that his Honour, with respect, has correctly and aptly targeted the order so that its focus is in respect of AGL Sales.

10    The other order under substantive challenge is the order in respect of indemnity costs. That such an order might be made was contemplated by the then docket judge, Edelman J, in orders which his Honour made on 5 July 2016.

11    As to the particular indemnity costs order, it is apparent from the reasons for judgment of the primary judge that he was well seized with the principles which attend the making of such an order. He referred, aptly in that regard, amongst other cases, to authorities cited by Davies J in TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 3) [2016] FCA 828 at [7]. Also pertinently, Davies J cited at [52] a particular passage from Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 at 401 (Fountain Selected Meats), in which Woodward J stated:

I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.  In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.  Such cases are, fortunately, rare.  But when they occur, the court will need to consider how it should exercise its unfettered discretion.

12    This case was one where, on and from 3 May 2016, the first case management hearing after AGL Sales had admitted its mistake that a costs order on an indemnity basis might reasonably be made, particularly having regard to Woodward J’s observation in Fountain Selected Meats. What was entailed was the exercise of a judicial discretion. It would not be sufficient to overturn the exercise of that discretion that I was in any way in disagreement with it or would not have made such an order myself. I would have to be persuaded that there was an error of principle of the kind described in House v The King (1936) 55 CLR 499. Mr Mbuzi was unable to demonstrate any such error of principle in relation to the exercise of that discretion.

13    Indeed, the particular date chosen by the learned primary judge was compellingly logical in terms of the exercise of a judicial discretion.

14    It also emerged on the appeal that Mr Mbuzi challenged Reeves J hearing and determining the proceedings that led to the orders under appeal. That challenge was not one which was made before his Honour. There was no application to the primary judge that he should disqualify himself for reasons of bias, be that actual or apprehended. Nor were the attending circumstances such that a judge ought to have, of his own motion, to have disqualified himself.

15    It would do an injustice to his Honour to do other than observe that there is not a scintilla of evidence which would in any way warrant him from disqualifying himself.

16    Mr Mbuzi also made, as his written submission reveal, complaint about other judgments delivered at earlier stages of the procedural history. It is necessary to remember that an appeal is not in the nature of a roving inquiry; only a proceeding whereby, having regard to grounds of appeal in a notice of appeal, the Court determines whether or not the orders which are the subject of an appeal were attended with appellable error. In this particular case, however one reads the notice of appeal, there is no such error.

17    For the reasons which I have given, I would dismiss the appeal.

Associate:

Dated:    18 December 2018

REASONS FOR JUDGMENT

(Revised From Transcript)

DAVIES J:

18    I agree with the reasons and conclusion of Justice Logan. I would add in relation to the appeal ground on the bias issue that the reasons of Reeves J record that during a case management hearing on 18 August 2017 Mr Mbuzi did apply for his Honour to recuse himself, which application was refused. Mr Mbuzi filed an application for leave to appeal that and other orders on 31 August 2017, but subsequently discontinued that application.

19    In the circumstances, there is no warrant to disturb his Honour’s dismissal of the recusal application.

Associate:    

Dated:    18 December 2018

REASONS FOR JUDGMENT

(Revised From Transcript)

STEWARD J:

20    I concur with both the judgments of Logan J and Davies J.

Associate:

Dated:    18 December 2018