FEDERAL COURT OF AUSTRALIA

Mbuzi v AGL Sales Pty Limited [2018] FCA 367

ORDERS

THE COURT ORDERS THAT:

1.    In accordance with s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), the applicant is prohibited from commencing proceedings against the respondent.

2.    The applicant’s application filed 14 September 2017 is dismissed.

3.    The applicant is to pay the costs of the respondent’s application filed 29 July 2016, to be taxed, if not agreed.

4.    Order 2 of the orders made by Edelman J on 5 July 2016 is set aside, and the applicant is to pay the respondent’s costs of the applicant’s application filed 30 March 2016 on an indemnity basis from and including 3 May 2016.

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

REASONS FOR JUDGMENT

REEVES J:

1    In this proceeding, AGL Sales Pty Limited, the respondent, seeks orders under the Vexatious Proceedings provisions in Part VAAA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) prohibiting Mr Mbuzi, the applicant, from instituting any proceedings in this Court against AGL Sales Pty Limited, or any of its employees, officers or agents, and Geoffrey Mendelson Lawyers, or any of its employees, officers or agents. AGL Sales also seeks to set aside a party and party costs order made in its favour by Edelman J and to substitute an order for indemnity costs. As well, they seek an order for the costs of the present application on an indemnity basis.

PROCEDURAL HISTORY

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.

CONTENTIONS

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).

31    While AGL Sales also relied upon an earlier proceeding in this Court before Collier J and certain orders made in a proceeding in the Supreme Court, with the exception of the matter dealt with in [50] below with respect to the former, I do not consider it is necessary to examine the details of those proceedings in order to dispose of this application.

32    In response, Mr Mbuzi contended that AGL Sales lacked the standing to make this application to the extent that the application sought orders with respect to parties who were not parties to this proceeding, namely AGL Retail, AGL’s employees and AGL’s lawyers and the employees of that firm. He submitted that those parties needed to show they had a sufficient interest in the proceeding under s 37AO(3)(d) of the Federal Court Act. Mr Mbuzi contrasted this application with that before Collier J in Mbuzi v Griffith University (2014) 323 ALR 248; [2014] FCA 1323 and claimed there was no evidence in this matter of any relevant conduct on his behalf towards any employees of AGL Sales, or towards its lawyers. On this aspect, it should be noted that, shortly before the hearing of the present application, Mr Mbuzi filed an application seeking to have it summarily dismissed on the ground that AGL Sales had no standing to make it. I heard that application concurrently with the present application.

33    Further, Mr Mbuzi submitted that the conduct of AGL Sales led to most of the difficulties that had arisen in this proceeding. In this respect, Mr Mbuzi did not seem to be willing to accept AGL Sales’ explanation that it issued the invoice on 18 March 2016 by mistake. Instead, he contended that it was deliberately issued. Mr Mbuzi also submitted that this application constituted an attempt by AGL Sales to re-litigate issues which had been previously dealt with by Edelman J. This submission can be rejected at once. It is clear from Edelman J’s reasons ([2016] FCA 590) that his Honour did not deal with this issue, to the extent it was raised by AGL Sales in its submissions, but rather directed that it should be brought by a separate application so that Mr Mbuzi could have the opportunity to be heard in relation to it (see at [13] above).

THE VEXATIOUS PROCEEDINGS ORDERS PROVISIONS

34    Section 37AO of the Federal Court Act, under which AGL Sales’ application is made, relevantly provides:

37AO    Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney-General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

…

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

THE PRINCIPLES ON THE OPERATION OF THE VEXATIOUS PROCEEDINGS ORDERS PROVISIONS

35    The principles relating to an application of this kind are relatively well-established. The most convenient way to outline those principles is to set out the observations I made in Mathews v State of Queensland [2015] FCA 1488 (Mathews) (at [81]–[92]) as follows:

81    Under s 37AO(1)(a), the essential elements the State must prove to succeed in this application are that Mr Mathews has:

(a)    frequently;

(b)    instituted or conducted;

(c)    vexatious proceedings;

(d)    in Australian courts or tribunals.

82    Furthermore, under s 37AO(3)(c), the State must demonstrate that Mr Mathews has instituted or conducted at least one vexatious proceeding against it in order for it to have standing to bring this application. As well, s 37AO(4) contains a requirement that, before any vexatious proceedings order is made, Mr Mathews must be heard on the application or given an opportunity to be heard. Having regard to the history of this application recorded at [32] and [40] above, I consider this requirement has been well met.

83    Set out below are some pertinent observations that have been made in relatively recent decisions of this Court, and others, about the meaning and scope of each of the above elements.

“Frequently”

84    The term “frequently” is not defined in s 37AO, or elsewhere in the Federal Court Act. It therefore has its ordinary meaning: see Fuller at [33]; Garrett v Commissioner of Taxation (2015) 147 ALD 342; [2015] FCA 117 (Garrett) at [8] per Pagone J and Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927 (Mulhern) at [10] per Gleeson J. In Fuller, the Full Court adopted (at [33]) the observations of Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (HWY) as an apt analysis of the word “frequently”. Her Honour said:

110    Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings ‘frequently’. As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [11]:

It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law - see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported - Supreme Court NSW, Holland J - 29 March 1978).

111    Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted “habitually and persistently”. That test had been said to imply “more than great frequency”, the word “[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J.

112    The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).

85    It follows that no numerical threshold is prescribed in the legislation and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case: see HWY at [114].

“Instituted or conducted”

86    As with the word “frequently”, the term “conducted” is not specifically defined in s 37AO or elsewhere in the Federal Court Act. However, the word “institute” is “specifically defined [in s 37AM] in an inclusory way so as, materially, to include, ‘the taking of a step or the making of an application that may be necessary before proceedings can be started against a party’”: see Fuller at [36]. In Fuller, the Court gave some examples of what the terms “instituted” and “conducted” may encompass, as follows (at [38]):

A statement of claim may show that, having regard to earlier proceedings, a current proceeding has been “instituted” vexatiously. The filing and service of a grossly inadequate statement of claim, exhibiting like inadequacies to those already determined by earlier proceedings, may also show that a proceeding is being “conducted” vexatiously …

“Vexatious proceedings”

87    As Pagone J pointed out at [4] in Garrett, the word “vexatious” is not separately defined in s 37AM, or elsewhere in the Federal Court Act. That being so, his Honour adopted the following observations about that expression in the decision of the Full Court of the Supreme Court of Victoria in Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed, at 12):

In the light of the mischief to which the section is directed, however, it seems to me that the word “vexatious” is not in this context a term of art and is an omnibus expression, which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word “vexatious” in the statute.

In Mulhern (at [8]), Gleeson J followed Pagone J in adopting these observations and I propose to do likewise here.

88    Furthermore, in determining whether a proceeding is vexatious, it is also necessary to have regard to the definition of the expression “vexatious proceeding” in s 37AM of the Federal Court Act. That definition inclusively describes four bases upon which a proceeding may be found to be vexatious, namely:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another.

89    In Attorney-General (NSW) v Chan [2011] NSWSC 1315, Adamson J said of an equivalent provision in the corresponding legislation in New South Wales, being the Vexatious Proceedings Act 2008 (NSW), that (at [33]):

These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes an objective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not.

See also HWY at [106] per Perry J and Garrett at [4] per Pagone J.

90    The relitigation of matters that have been decided previously, or seeking to institute further proceedings in relation to matters that have been raised, or should more appropriately have been raised, in other proceedings, have been held to constitute vexatious proceedings within the terms of the expression: see Garrett at [11] per Pagone J. So, too, has the institution or pursuit of proceedings without reasonable grounds: see Garrett at [23] per Pagone J and Mulhern at [9] per Gleeson J.

91    Section 37AM of the Federal Court Act defines “proceeding” as follows:

(a)    in relation to a court – has the meaning given by section 4; and

(b)    in relation to a tribunal – means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding .

92    Section 4 (referred to in paragraph (a) above) defines “proceeding” to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. Various types of interlocutory application have been held to fall within the definition of the term “proceeding”, including:

(a)    an interlocutory proceeding within a substantive proceeding directed to the attainment of final relief: see Mulhern at [7];

(b)    an interlocutory application seeking a stay of an appeal and one seeking leave to amend the grounds of an appeal: see Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [38]–[39] per Gilmour J; and

(c)    an application for an extension of time in which to appeal, an oral application for an adjournment and an application for the issue of a subpoena: see HWY at [102] per Perry J.

CONSIDERATION

The elements

36    Adapted from Mathews at [81] (set out at [35] above), the essential elements that AGL must establish to succeed in this application are that Mr Mbuzi has:

(a)    frequently;

(b)    instituted or conducted;

(c)    vexatious proceedings;

(d)    in Australian courts or tribunals.

37    I will deal with each of these elements below, but in a different order.

Standing

38    It is, however, convenient, first, to address the question of standing raised by Mr Mbuzi. Included among the persons who may apply for a vexatious proceedings order are those persons against whom a proceeding has been instituted or conducted, or a person with a “sufficient interest in the matter” (see s 37AO(3)(c) and (d) at [34] above). Accordingly, as the respondent party to this proceeding, AGL Sales meets the former criterion and therefore has the requisite standing to make this application. For this reason, I will dismiss Mr Mbuzi’s application filed 14 September 2017 (see at [32] above). However, I will return to an aspect of the question Mr Mbuzi has raised by that application later in these reasons when I come to consider what orders are appropriate to be made.

Instituted or conducted … proceedings

39    The central criteria for making a vexatious proceedings order are that a person “instituted or conducted” vexatious proceedings (s 37AO(1)(a)). In this application, AGL Sales has relied on Mr Mbuzi having “conducted” as vexatious proceedings the first proceeding and having instituted and conducted as vexatious proceedings the other five proceedings described above. Before I turn to the meaning of the expression “conducted”, it is appropriate to note that the expression “institute” is defined in an inclusory way in s 37AM (see Mathews at [86]). Importantly for this matter, sub-para (d) of that definition includes an application for leave to appeal as follows:

institute, in relation to proceedings, includes:

…

(d)    for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

(Emphasis added)

40    The expression “conducted” is, however, not defined in the Federal Court Act. It therefore takes its ordinary and natural meaning. That is: “2. direction or management; execution … 5. to direct in action or course; manage; carry on …” (Macquarie Dictionary, 6th ed, Macquarie Dictionary Publishers Pty Ltd). It follows that, commencing a substantive proceeding and taking a step in that proceeding by filing an application or similar document, constitutes both instituting and conducting that proceeding. Furthermore, taking the same kind of step in an existing proceeding constitutes conducting that proceeding.

41    The expression “proceeding” is defined in s 37AM. That definition extends to include an appeal (see Mathews at [91–[92]). Furthermore, as I have already noted above, sub-para (d) of the definition of “institute” in s 37AM (see at [39] above) extends that further to include making an application for leave to appeal.

42    It follows that the six proceedings described at [30] above are all proceedings as defined and, by taking the steps in those proceedings that he did, Mr Mbuzi instituted and/or conducted those proceedings in this Court. Specifically, the application described in [30(a)] was an interlocutory application conducted by Mr Mbuzi from on or about 6 April 2016 when he was notified of AGL Sales’ mistake. Further, the application described in [30(d)] above was an interlocutory application that was filed and conducted in this proceeding. While the applications for leave to appeal described in [30(b)] and [30(f)] above were steps taken in those appeal proceedings, both of those proceedings were proceedings that were instituted and conducted by Mr Mbuzi. Similarly, while the applications under the ADJR Act described in [30(c)] and [30(e)] above were each separate proceedings, they were both proceedings that were instituted and conducted by Mr Mbuzi.

43    For these reasons, it follows that Mr Mbuzi instituted and/or conducted the six proceedings in this Court upon which AGL Sales relied, as described in [30] above.

Vexatious proceedings

44    Next, it is necessary to consider whether those six proceedings constituted vexatious proceedings. That expression is defined in inclusory terms in s 37AM to include four types of proceeding (see Mathews at [88]). However, the expression “vexatious” is not so defined. That being so, I will take the same approach as I outlined in Mathews and adopt the following observations about what that expression entails (Mathews at [87]):

As Pagone J pointed out at [4] in Garrett, the word “vexatious” is not separately defined in s 37AM, or elsewhere in the Federal Court Act. That being so, his Honour adopted the following observations about that expression in the decision of the Full Court of the Supreme Court of Victoria in Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed, at 12):

In the light of the mischief to which the section is directed, however, it seems to me that the word “vexatious” is not in this context a term of art and is an omnibus expression, which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word “vexatious” in the statute.

In Mulhern (at [8]), Gleeson J followed Pagone J in adopting these observations and I propose to do likewise here.

See also Mathews at [89]–[90].

45    In my view, four of the six proceedings described at [30] above were vexatious proceedings, that is, the proceedings described in (a), (b), (d) and (f). To elaborate, in the case of the application to reopen the proceeding in (a), while it is arguable that, at least initially, that application may have been a reasonable response from a non-lawyer such as Mr Mbuzi, when he was confronted with the invoice issued in apparent breach of the Deed, it was, in my view, vexatious to continue to conduct that proceeding from on or about 6 April 2016 when AGL Sales admitted its mistake and reversed its invoice. Thereafter, the proceeding served no purpose. This vexation was compounded by Mr Mbuzi persisting with the spurious claim throughout that AGL Sales had acted deliberately, rather than mistakenly, in issuing its invoice.

46    With respect to (b), as the reasons for judgment dismissing that application reveal (see at [14] above), it had no prospects of success. The same applies to the interlocutory application in (d) and the application for leave to appeal in (f). There was no reasonable ground for issuing either of those applications and neither had any prospects of success. I have excluded the two ADJR Act proceedings ((c) and (e)) from this conclusion because those two proceedings were at least partly successful, albeit unwittingly on Mr Mbuzi’s part, and the vexatious element involved in filing the second of those applications is already encapsulated in my conclusions with respect to (d) above. To be specific, whilst they ultimately dismissed Mr Mbuzi applications on discretionary grounds, both Rangiah J and Collier J found that the Registrar concerned had erred in rejecting his applications on the ground that a procedural direction was not a judgment that could be appealed (see Mbuzi v Baldwin [2016] FCA 1314 and Mbuzi v Tredwell [2017] FCA 1137 respectively).

Frequently

47    The final element that AGL Sales needs to establish to obtain a vexatious proceedings order is that the four vexatious proceedings I have identified above constitute having frequently conducted such proceedings (see s 37AO(1)(a)). I addressed the meaning of the expression “frequently” in Mathews at [84] by reference to the judgment of Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 and concluded at Mathews [85] that:

It follows that no numerical threshold is prescribed in the legislation and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case: see HWY at [114].

I consider it is appropriate to adopt the same approach in this matter.

48    The four vexatious proceedings I have identified above were instituted and conducted within a 16 month period between late March 2016 and late July 2017. In all the circumstances of this case, I consider that number of proceedings in that short a period of time breaches the threshold for “frequently” in s 37AO(1)(a).

The orders

49    For the reasons set out above, I therefore consider that Mr Mbuzi frequently instituted or conducted vexatious proceedings in this Court. That being so, it is necessary to consider which of the orders prescribed by s 37AO(2), if any, should be made. Those orders are as follows:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

50    Mr Mbuzi discontinued this proceeding in February 2016 and Edelman J dismissed Mr Mbuzi’s application to reopen the proceeding on 5 July 2016 ([2016] FCA 590). It is therefore unnecessary to make any orders under s 37AO(2)(a). I do, however, consider it is appropriate to make an order under s 37AO(2)(b) prohibiting Mr Mbuzi from instituting any further proceedings in this Court against AGL Sales Pty Limited. That order should, in my view, be limited to AGL Sales Pty Limited. In other words, I do not consider it is appropriate to extend it to include AGL Sales’ employees and its lawyers, Geoffrey Mendelson Lawyers, or any of its employees. As Mr Mbuzi has pointed out, the reason why Collier J made orders with respect to the employees of Griffith University in Mbuzi v Griffith University (2014) 323 ALR 248; [2014] FCA 1323 was that he had threatened to commence proceedings against those employees (see at [190] and [193]). There is no evidence before me in this matter that Mr Mbuzi has made any similar threats to commence proceedings against any employees of AGL Sales, or to commence any proceedings against Geoffrey Mendelson Lawyers, or any of its employees. While Mr Mbuzi’s behaviour with respect to AGL’s solicitor, Ms Chiu, has on occasions been discourteous and offensive, I do not consider that behaviour can relevantly be characterised as vexatious for the purposes of the vexatious proceedings provisions of the Federal Court Act.

INDEMNITY COSTS

51    There remain AGL Sales’ two applications for indemnity costs: first, an order to replace Order 2 of the orders of Edelman J made on 5 July 2016 (see at [15] above) and, secondly, the costs of this application.

52    The purpose of any costs order is to compensate the successful party for the costs he or she has incurred in a proceeding. Costs are not ordered to punish the unsuccessful party (see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 per McHugh J and Hammond v New South Wales [2002] FCA 424 at [20] per Gray, Carr and Goldberg JJ). Furthermore, it is well-established that there needs to be a special or unusual feature to justify a costs order being made on an indemnity basis: see the 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]. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 (Fountain Selected Meats) at 401, Woodward J identified one such feature as follows:

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.

53    In support of both applications, AGL Sales contended that Mr Mbuzi’s application to reopen this proceeding “was continued with disregard to the known facts … and was instituted for an improper purpose”. The “known facts” to which AGL Sales referred were that it had withdrawn its invoice soon after Mr Mbuzi had issued his application on 30 March 2016. AGL Sales also relied on the fact that Mr Mbuzi unreasonably refused to accept that AGL Sales had made a mistake in issuing the invoice. The improper purpose upon which AGL Sales relied was that Mr Mbuzi had, in his application, sought compensation from AGL Sales for payments which he had not incurred: see Mbuzi v AGL Retail Energy Pty Ltd [2016] FCA 590 at [19] and [34].

54    The concern I have with ordering indemnity costs with respect to the first application is that it was AGL Sales’ mistake that provoked that application. As I have already observed above, for a self-represented litigant in Mr Mbuzi’s position, that response to the mistakenly issued invoice could not, in the circumstances, be characterised as unreasonable. On the other hand, once AGL Sales freely admitted its mistake and reversed the invoice, as I have also already observed above, it was both unreasonable and vexatious for Mr Mbuzi to continue with his application for no good cause and, in the process, persist in maintaining that AGL Sales had issued the invoice deliberately. In other circumstances, this latter course of conduct may justify an order for indemnity costs as the Fountain Selected Meats decision demonstrates. However, in this matter, AGL Sales has already obtained an order for the party and party costs of Mr Mbuzi’s application and, in part, that costs order will cover the costs AGL Sales incurred in the initial stage of the application which was occasioned by its own mistake. That being so, I do not consider it would be fair and just to compound that outcome by ordering Mr Mbuzi to pay those costs on an indemnity basis. To accommodate this state of affairs, I consider the most appropriate course is to set aside Order 2 of the orders made on 5 July 2016 and to replace it with an order that Mr Mbuzi pay AGL Sales’ costs of his application on an indemnity basis as from, and including, 3 May 2016. I have chosen that date because it was the date of the first case management hearing of the application after AGL Sales admitted its mistake on or about 6 April 2016 (see at [12] above).

55    Different considerations, however, apply to the second application, which concerns the present application for a vexatious proceedings order. For the following two reasons, I do not consider it is appropriate to make an indemnity costs order with respect to the present application. First, Mr Mbuzi is the respondent to this application and he was quite entitled to defend it. Secondly, AGL Sales has not pointed to any special or unusual feature of Mr Mbuzi’s conduct of that defence that would justify an indemnity costs order being made.

Conclusion

56    For these reasons, I will set aside Order 2 of the orders made by Edelman J on 5 July 2016 and instead order that Mr Mbuzi pay AGL Sales’ costs of the application filed 30 March 2016 on an indemnity basis from and including 3 May 2016. On the present application, I will make the usual order that Mr Mbuzi pay AGL Sales’ costs of its application filed 29 July 2016 to be taxed, if not agreed.

57    Further, for the reasons set out above, I will make a vexatious proceedings order under s 37AO(2)(b) limited to preventing Mr Mbuzi commencing proceedings against AGL Sales Pty Limited. As well, I will order that Mr Mbuzi’s application filed 14 September 2017 be dismissed.

Associate:    

Dated:    19 March 2018