FEDERAL COURT OF AUSTRALIA

Mbuzi v Tredwell [2017] FCA 1137

ORDERS

THE COURT ORDERS THAT:

The applicant’s originating application filed 20 March 2017 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for judicial review of a decision of a Deputy District Registrar of this Court.

2    On 16 March 2017, the applicant, Mr Mbuzi, submitted an application for extension of time and leave to appeal orders of Reeves J. The respondent refused to accept the documents for filing and communicated his reasons by a letter dated 17 March 2017. On 20 March 2017, the applicant submitted this application for judicial review. On 4 April 2017, I made orders for the filing of material, submissions and authorities, and determined that the matter be decided on the papers.

Background

3    The application is related to long-running litigation between Mr Mbuzi and, variously, AGL Retail Energy Limited (AGL Retail) and AGL Sales Pty Limited (AGL Sales) in file QUD 881 of 2015. In a related judgment (Mbuzi v Baldwin [2016] FCA 1314), Rangiah J at [8] described the litigation to that date as being “plagued by confusion”. Unfortunately, this trend has continued.

4    Relevantly, on 24 September 2015, Mr Mbuzi filed an originating application against AGL Retail. Mr Mbuzi sought injunctions and compensatory damages from AGL Retail for allegedly overcharging him in respect of his electricity account, improperly making demands for payments, and issuing disconnection notices to him.

5    In an email dated 20 October 2015 a solicitor acting for AGL Retail informed Mr Mbuzi that the retailer responsible for the electricity supply to his premises was AGL Sales, and that Mr Mbuzi did not have a contract or account with AGL Retail. Mr Mbuzi then filed an application seeking an order to substitute AGL Sales as the respondent to his originating application.

6    On 3 December 2015, Edelman J ordered, relevantly:

1.    The applicant’s originating application filed on 24 September 2015 be amended in the terms set out in his application filed on 18 November 2015, as amended to remove the proposed respondents and to insert as the sole respondent AGL Sales Pty Ltd.

…

5.    The respondent to this application be restyled AGL Sales Pty Limited.

7    On 17 February 2016, Mr Mbuzi’s originating application filed 24 September 2015 was resolved at mediation. Subsequently, Mr Mbuzi filed a notice of discontinuance which stated that it was “As per deed of settlement of 17 February 2017”.

8    This should have been the end of the matter. Unfortunately, on 18 March 2016 and in apparent disregard of the mediated settlement, AGL Sales issued an invoice to Mr Mbuzi inconsistent with the terms of the settlement.

9    Mr Mbuzi responded by filing an application to set aside the discontinuance and to reopen the proceedings, on the basis that AGL Sales had “reneged on the terms of the deed of settlement upon which the notice of discontinuance was based”. Despite a solicitor for AGL Sales apologising for the error and confirming that Mr Mbuzi owed no money to AGL Sales, Mr Mbuzi persisted with that application. That application was dismissed by Edelman J on 5 July 2016 in Mbuzi v AGL Retail Energy Limited [2016] FCA 590.

10    On 29 July 2016, an interlocutory application was filed in QUD 881 of 2015 by AGL Retail seeking, among other orders, that Mr Mbuzi be declared vexatious (the vexatious application). Relevantly to this matter, the orders sought were:

…

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)

…

(Emphasis added.)

11    The vexatious application was filed by AGL Retail, despite the orders previously made by Edelman J on 3 December 2015 to substitute AGL Sales as the respondent (and the apparent circumstance that Mr Mbuzi had no contract or account with AGL Retail).

12    On 11 August 2016, Mr Mbuzi filed an interlocutory application seeking to dismiss the vexatious application. Edelman J made case management orders on 19 August 2016 to bring both the interlocutory application filed 11 August 2016 and the vexatious application to hearing on 3 February 2017. His Honour also ordered that there be liberty to apply.

13    On 12 September 2016, the lawyer for AGL Sales emailed the Associate to Edelman J advising that the respondent wished to take advantage of the order for liberty to apply to amend the vexatious application filed on 29 July 2016. Relevantly the email said:

We have communicated with the Applicant previously that my office made a clerical error in the Respondent’s application filed on 29 July 2016, wherein the Respondent was erroneously entered as “AGL Retail Energy Ltd”. The error was a slip on our part.

Since there are no other parties to this proceeding other than the Applicant and AGL Sales Pty Ltd, we invited the Applicant to consent to amending our application only to correctly reflect the Respondent in this proceeding to be AGL Sales Pty Ltd. Other aspects regarding the Respondent’s application remain the same.

We acknowledged that our slip has caused certain concerns to the Applicant and we have apologized for any inconvenience caused.

To date, we have not received the Applicant’s consent for us to amend our application.

In light of the above, we ask this Honourable Court to exercise its discretion and amend the Respondent’s application under the slip rule. Alternatively, we ask for this matter to be listed for a short interlocutory/directions hearing; so that this application of ours to amend the Respondent’s application filed on 29 July 2016 can be dealt with.

14    Later that day, the Associate replied as follows:

… I have brought this email to his Honour’s attention. His Honour has asked me to inform the parties that unless there is an application that is brought, there is currently no purpose in listing the matter for directions or an interlocutory hearing. If Geoffrey Mendelson lawyers wish to bring an application on behalf of their client, then that application should be filed in the ordinary way.

15    This correspondence was included in an affidavit of Mr Mbuzi filed on 20 March 2017 in this matter.

16    No application to amend the vexatious application appears to have been made by AGL Sales in 2016. In early 2017, the matter was reallocated to the docket of Reeves J.

17    The interlocutory application filed 11 August 2016 and the vexatious application came on for hearing before Reeves J on 3 February 2017. While I have not been provided with a transcript of the hearing, from what I gather from available material Reeves J adjourned the hearing of the two applications, and further dismissed an oral application by AGL Sales to amend the vexatious application and substitute AGL Sales for AGL Retail as a party to the proceedings: Mbuzi v AGL Retail Energy Ltd [2017] FCA 617.

18    His Honour then proceeded to make the following case management orders:

1.    The interlocutory application filed 29 July 2016 and the interlocutory application filed on 11 August 2016 are adjourned to a date to be fixed.

1.    By close of business on 6 February 2017, the respondent is to file an application to amend its interlocutory application filed 29 July 2016, together with any supporting material.

3.    By the close of business on 13 February 2017, the respondent is to file its outline of submissions in support of its amended interlocutory application (of no more than eight pages in length).

4.    By the close of business on 20 March 2017, the applicant is to file any outline of submissions in support of his amended interlocutory application (of no more than eight pages in length).

5.    Costs are reserved.

19    On the face of the case management orders, the respondent was listed as AGL Sales and the matter remained in file QUD 881 of 2015. (I note that this was in light of the orders of Edelman J on 3 December 2015, and notwithstanding that the vexatious application was filed by AGL Retail and referred only to AGL Retail).

20    On 20 March 2017, Mr Mbuzi lodged with the Federal Court Registry an application for extension of time and leave to appeal against the judgments of Reeves J of on 16 January 2017 and 3 February 2017 (leave to appeal application). The application was accompanied by a draft notice of appeal which listed the proposed grounds of appeal as follows:

1.    Lack of jurisdiction, alternatively, Jurisdictional error

2.    Inequity

3.    Prejudice

4.    Judicial dishonesty

5.    Injustice

6.    Bigotry

21    In his accompanying affidavit dated 16 March 2017, it appears Mr Mbuzi also took issue with (inter alia) AGL Sales being listed as the respondent on the face of the orders.

22    The Deputy District Registrar refused to accept for filing the leave to appeal application and Mr Mbuzi’s accompanying affidavit. He communicated his reasons for refusal by a letter dated 17 March 2017:

I refer to the Application for Leave to Appeal which you sought to file in person on 16 March 2017.

You seek leave to appeal from the judgment of Justice Reeves on 16 January 2017 and 3 February 2017 in respect of QUD881/2015. You are the applicant in those proceedings.

Rule 2.26 of the Federal Court Rules 2011 provides:

“A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.”

A proceeding may amount to an abuse of process if, irrespective of the propriety of the purpose for instituting the proceeding, it can clearly be seen to be foredoomed to fail: (see the judgment of the High Court in Walton v Gardiner (1993) 177 CLR 3 78, at 393).

The Court has no listing for this matter on 16 January 2017, it follows that no orders or judgment were made. The orders made by Justice Reeves dated 3 February 2017 are procedural in nature and are made as part of the Court’s case management of QUD881/15, to prepare an interlocutory application for hearing.

The Full Court (Rares, Buchanan and Foster JJ) in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 held at [35] that:

A procedural direction is not a judgment for the purpose of s24A of the FCA Act. The primary judge’s decision was interlocutory and dealt with a matter of practice and procedure. Particular caution is exercised by appellate courts in reviewing decisions of primary judges pertaining to practice and procedure. There are no rigid or exhaustive criteria on which an appellate court may interfere in such matters, although, generally, injustice flowing from the order appealed against will be relevant.

The directions made by Justice Reeves do not conclude any fundamental issues between the parties. They are procedural in nature only. Therefore there is no basis upon which any appeal against those directions could succeed or would have any useful effect at all. Ogawa v University of Melbourne [2005] FCA 1150 (French J)

Pursuant to rule 2.26 of the Federal Court Rules 2011 I have decided not to accept the Application for Leave to Appeal for filing for the reasons outlined about.

(Original emphasis.)

23    It is in respect of the decision of the Deputy District Registrar of 17 March 2017 that Mr Mbuzi seeks judicial review.

Application for judicial review

24    The grounds of this application for judicial review were:

1.    The statutory and precedent laws have been applied erroneously.

2.    The case cited (FCAFC 69 “Spirits International”) has been misconceived as determining that “A procedural direction is not a judgment”.

3.    Dishonesty and misrepresentation is demonstrable from point 2 above.

4.    Dumbness on the part of the so-called “Deputy District Registrar” is demonstrable by his reference to a non-existent “s24A of the FCA Act”.

5.    It demonstrates prejudice against the applicant as a litigant in person as the respondent stated that documents submitted by legally represented litigants “are automatically accepted for filing”.

6.    Abuse of power is demonstrable by the decision maker’s dishonesty and misrepresentation stated at 3 in the “Details of Claim” above.

7.    It is contrary to law for lack of equity and also for engaging in misrepresentation.

8.    There is jurisdictional error because the registrar exceeded his registry’s administrative and clerical functions by engaging in the judicial exercise (albeit erroneously) of assessing the merits of the applicant’s application.

9.    It demonstrates unreasonableness because the stated grounds for the refusal are not legally competent.

10.    It is contrary to law for failing to apply equality for all and also for misrepresentation of the statutory and precedent laws as per points 1, 2, 3, 4, and 5 above,

11.    Grounds 1 to 10 above demonstrate injustice.

(Original emphasis.)

25    The “Details of Claim” referred to in ground 6 were as follows:

The Applicant is aggrieved by the decision because:

1.    It is based on an error of law.

2.    It is based on a misconception of the legal case cited.

3.    It is based on dishonesty and misrepresentation.

4.    It demonstrates dumbness of the part of the decision maker.

5.    It demonstrates prejudice against litigants in person.

6.    It demonstrates an abuse of power by the decision maker.

7.    It is otherwise contrary to law.

8.    It demonstrates jurisdictional error.

9.    It demonstrates unreasonableness.

10.    It is otherwise contrary to law and

11.    Injustice.

26    Mr Mbuzi sought a declaration that the Deputy District Registrar’s decision to refuse to accept the documents for filing was based on an error of law, and an order that the documents be accepted for filing.

Submissions

27    In written submissions filed on 5 May 2017, Mr Mbuzi submitted, in summary:

    The quote attributed to the Full Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 did not exist and the respondent deliberately included the passage in the belief that the applicant, without legal representation or legal qualification, would not be aware of this;

    Similarly, s 24A of the Federal Court Act 1976 (Cth) (FCA Act) did not exist;

    The decision to refuse to accept the documents for filing was based on ‘erroneous, biased, prejudicial and dishonest grounds’. As such, the decision should be set aside in the interest of justice and to restore respectability to the Court;

    Contrary to the letter of the respondent, s 24(1)(a) of the FCA Act confers jurisdiction on the Court to hear and determine appeals from judgments of a single Judge. “Judgment” is defined in s 4 of the FCA Act and includes interlocutory orders in the nature of those made by Reeves J;

    The effect of the orders of Reeves J was to reverse an earlier decision of Edelman J to refuse an amendment to the vexatious application; and

    Mr Mbuzi was the subject of bias and prejudice on the part of the Federal Court Registry because he was a litigant in person.

28    The Deputy District Registrar filed a submitting notice, save as to costs. As a result, no submissions or material have been filed by the respondent in this matter.

Consideration

29    The Registrar’s refusal to accept the documents for filing was made pursuant to r 2.26 of the Federal Court Rules 2011 (Cth). That rule provides:

Refusal to accept document for filing – abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

30    While the decision of Rangiah J in Mbuzi v Baldwin [2016] FCA 1314 was not brought to my attention by the applicant, it is highly relevant to the current application before me. That case concerned a refusal of the District Registrar to accept an application for leave to appeal filed by Mr Mbuzi against the case management orders of Edelman J of 19 August 2016 in these proceedings.

31    The letter sent by the District Registrar in that matter appears to have been reproduced almost verbatim by the respondent in this matter. Most relevantly, it included the same purported quote from the Full Court judgment in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69, the reference to “section 24A”, and similarly concluded that, given the procedural nature of the orders, there was no basis upon which an appeal could succeed.

32    In considering the relevant application in Mbuzi v Baldwin [2016] FCA 1314, Rangiah J found:

29     The Registrar concluded that the application for leave to appeal was an abuse of the Court’s process because the application was foredoomed to fail. The Registrar reached that conclusion by relying on a passage apparently taken from the judgment of the Full Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 (“Spirits International”) at [35]. The Registrar attributed to the Full Court the words, “A procedural direction is not a judgment for the purpose s 24A (sic) of the FCA Act”. However, those words do not appear in the Full Court’s judgment. The Registrar erroneously transposed those words into the passage she quoted.

30     The Registrar’s error was a substantial one. It appears to have led the Registrar to think that the Court had no jurisdiction to entertain an application for leave to appeal where orders are procedural in nature and do not conclude any “fundamental issues” between the parties. In fact, the passage at [35] of Spirits International indicates that while particular caution is exercised by appellate courts in reviewing judgments of primary judges relating to matters of practice and procedure, there are no rigid or exhaustive criteria.

31    The view taken by the Registrar that a procedural order cannot be a judgment for the purpose of ss 24(1)(a) and 24(1A) of the FCA Act is wrong. Section 24(1)(a) of the FCA Act confers jurisdiction on the Court to hear and determine appears from judgments of the Court constituted by a single judge. The word “judgment” is defined in s 4 of the FCA Act to mean, relevantly, “a judgment, decree or order, whether final or interlocutory”. A “judgment” in this context is the formal order made by the Court which disposes of, or deals with, the issue for determination: Letton v Templeton at [17], Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46].

…

33    A decision made by a Registrar under r 2.26 of the Federal Court Rules is an administrative decision which is amenable to review under the ADJR Act: see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 33 at [15]-[16], Satchithanantham v National Australia Bank [2010] FCAFC 47 at [49], Rahman v Hedge [2012] FCA 68 at [5]. In my opinion, the decision involved an error of law within s 5(1)(f) of the ADJR Act.

33    In this case, when the proceedings came before Reeves J on 3 February 2017 his Honour refused the oral application by AGL Sales to amend the vexatious application, and then proceeded to make case management orders for the filing of a written application and submissions from both parties on the issue of the amendment of the vexatious application. Given the “inordinate amount of time [that had] already been wasted on this matter” (Mbuzi v AGL Retail Energy Ltd [2017] FCA 617), his Honour proposed to deal with any application to amend on the papers, without any further hearing. As was the case in respect of the case management orders considered by Rangiah J, the case management orders made by Reeves J on 3 February 2017 were clearly capable of being the subject of an application for leave to appeal pursuant to s 24(1A) and an appeal under s 24(1)(a) of the FCA Act. To the extent that the Deputy District Registrar in his reasons stated to the contrary, those reasons were manifestly wrong.

34    As was the case before Rangiah J, the Deputy District Registrar’s reasons, communicated in his letter of 17 March 2017, were also characterised by serious error in referring to a non-existent quote from the decision of the Full Court in Spirits International [2011] FCAFC 69, and a non-existent section of the FCA Act.

35    These errors constitute grounds of review within the meaning of s 5(1)(c), (d) and (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and prima facie support an order setting aside the decision of the Deputy District Registrar.

36    However, the Court has discretion under s 16(1) of the ADJR Act whether to grant relief, notwithstanding demonstrated error within the terms of that Act. In Mbuzi v Baldwin [2016] FCA 1314, Rangiah J refused to grant relief on the basis that it was futile, because the proposed application in that case was bound to fail on its merits.

37    The relevant application in respect of which filing was refused, concerned leave to appeal and extension of time in which to appeal.

38    In this case I consider that relief sought by Mr Mbuzi should be refused on discretionary grounds, for the following reasons.

39    First, when considering an application for leave to appeal, the relevant test is whether the judgment is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]. The orders against which Mr Mbuzi seeks leave to appeal provide for AGL Sales to file an interlocutory application to amend the vexatious application and for each party to file submissions about whether the amendment should be granted. Mr Mbuzi also appears to take issue with the fact that AGL Sales is listed on the face of the orders as the respondent. The orders Mr Mbuzi disputes are routine – and, in the circumstances, appropriate – case management orders to progress that litigation before the Court. Those orders gave both parties the opportunity to be heard. There is no merit in Mr Mbuzi’s application to disturb such orders.

40    Second, Mr Mbuzi’s application is partially based on an incorrect premise. Mr Mbuzi submitted that Reeves J had reversed a decision of Edelman J to refuse an amendment to the vexatious application. Mr Mbuzi has not provided a transcript of any hearing where Edelman J refused to allow an amendment following a formal written application to do so. Rather, it appears from the correspondence to the parties from the Associate to Edelman J on 12 September 2016 that AGL Sales was instructed to formally file an application to amend. As no application was filed by AGL Sales, it cannot be said that Edelman J refused a request for substitution, but rather indicated the proper way it should be prepared.

41    Third, and notwithstanding Mr Mbuzi’s complaint about the description of the parties to this litigation, the respondent party on file QUD 881 of 2015 is AGL Sales. The fact that AGL Retail filed the vexatious application on the file is curious given that AGL Retail is not a party. However, the purpose of the orders of Reeves J made on 3 February 2017 was to hear the parties in order to deal with that anomaly. AGL Sales was substituted as the respondent on this file pursuant to orders of Edelman J on 3 December 2015, which orders continue to stand.

42    Fourth, it cannot be said that Mr Mbuzi has suffered any substantial injustice as a result of the naming of the respondent on the face of the orders, in circumstances where both parties were given the opportunity to file submissions about whether the amendment to the vexatious application should be allowed.

43    Fifth, there appears to be confusion in Mr Mbuzi’s draft notice of appeal as to the date of the judgment he seeks leave to appeal. As the respondent correctly noted, there was no listing or orders on 16 January 2017 as claimed by Mr Mbuzi.

44    Finally, and in any event, I note that on 6 February 2017, in accordance with the 3 February 2017 case management orders of Justice Reeves, an interlocutory application was filed by AGL Sales to delete any references to AGL Retail in the vexatious application and substitute AGL Sales as the relevant party. After both parties filed written submissions in accordance with those same orders, Reeves J delivered judgement in Mbuzi v AGL Retail Energy Ltd [2017] FCA 719 on 23 June 2017. His Honour ordered that:

1.    Any references to AGL Retail Energy Ltd (ACN 074 839 464) in the Respondent’s interlocutory application filed on 29 July 2016 and in the affidavit of Ching-Fei Chiu filed on 29 July 2016 be amended to AGL Sales Pty Ltd (ACN 090 538 337).

45    In this light it appears that the litigation has progressed beyond a point where there would be any utility in setting aside the decision of the Deputy District Registrar.

46    For these reasons, Mr Mbuzi’s application for judicial review is dismissed. Although as a general proposition costs follow the event, there should be no order as to costs in circumstances where Mr Mbuzi’s complaint had some merit, but where he is a litigant in person without legal costs, and where the respondent has filed a submitting appearance.

Associate:

Dated:    22 September 2017