Mbuzi v Hall[2010] QCA 5

COURT OF APPEAL

CHESTERMAN JA

Appeal No 8519 of 2009

SC No 6243 of 2009

JOSIYAS ZIFANANA MBUZIApplicant

v

ELIZABETH HALL & OTHERSRespondents

BRISBANE 

DATE 04/02/2010

JUDGMENT

CHESTERMAN JA:  On 24 December last year the Court of Appeal gave judgment dismissing Mr Mbuzi's application for leave to appeal against the order of White J, which had relevantly removed the second to sixth respondents to the application in this Court as parties to Mr Mbuzi's application for judicial review of the decision made by the first respondent, Magistrate Hall, sitting as the Small Claims Tribunal.

Mr Mbuzi has made an application to a Judge of Appeal pursuant to Rule 668.  The relevant part of the Rule appears to be 668(1)(b) which says that "This Rule applies if facts are discovered after an order is made that if discovered in time would have entitled the person against whom the order is made to an order or decision in the person's favour or to a different order."

The point seems to be this.  During the course of argument in the Court of Appeal, Justice Fryberg, a member of the Court, raised some questions of a legal nature with the parties.  The parties were, it seems, taken a little by surprise, and counsel for the respondent sought permission to address written submissions to the Court after judgment had been reserved.  That leave was given.

Further submissions were delivered by the respondent to the Court and a copy served on Mr Mbuzi on 9 November 2009.  Included with the submissions was an affidavit by the respondent's solicitor which annexed a copy of the transcript of proceedings in the Small Claims Tribunal, from which it appeared that Magistrate Hall had in fact made an order removing the second to sixth respondents as parties to the proceedings in the Small Claims Tribunal.  That fact is obviously relevant to the question whether Justice White was right to remove the respondents as parties in the proceedings before the Supreme Court for Judicial Review.

Mr Mbuzi responded to the submissions and affidavit of 9 November in a document headed "Research material".  In it, he objected to the receipt of the affidavit and the submissions made in reliance on it, saying "Points 11 to 13 which are unrelated to what Honourable Justice Fryberg raised and caused the respondents to fail to answer."  “Points 11 to 13” of the submission dealt with the Tribunal’s order to removal of the respondents.

The point is that Mr Mbuzi objected to the receipt of the affidavit and the transcript on the basis that it went beyond the point as to which the Court had given leave to deliver further submissions.

It is clear from the reasons for judgment of Justice Fryberg that the Court considered the respondent's further submissions, the affidavit, the transcript and Mr Mbuzi's objection to it.  It nevertheless accepted the submissions and the affidavit and relied upon, in part, the evidence that the Tribunal had removed the fourth to sixth respondents as parties.

Now, Mr Mbuzi's application to me based upon Rule 668 is that he did not know until after the Court of Appeal had given judgment on the 24th December last, that the Court had acted upon the affidavit and the submissions and that the Court has acted unfairly to him in that regard.

He had a second point that the Court's leave to the respondent to deliver further submissions did not extend to the point raised - I've dealt with that - and as I understood his submissions, which I sought to clarify with him, he claims that the affidavit, or the transcript annexed to it, is a forgery, that no such order was made.  That is needless to say a most serious allegation which to be taken seriously would require the most cogent evidence in support of it, and none whatsoever has been supplied.

I am left then with Mr Mbuzi's complaint that the Court ought not to have received the affidavit and acted upon the submissions made in reliance upon it.

I myself doubt that Rule 668 can have much application to orders made by the Court of Appeal.  If some objection was taken to the manner in which the Court of Appeal had dealt with the appeal hearing itself, the objection, I would have thought, should have been taken to the Court, constituted as it was, when the hearing took place.

Be that as it may, what has happened here does not, it seems to me, come within the terms of the Rule.  There are no facts discovered which if discovered in time, would have entitled the applicant here to a different order.  He was made aware of what was being said by the respondents, he replied to it.

What has happened is that the Court has preferred his opponent's submissions to his, and made orders on the basis of evidence and submissions which were put before the Court by those on the other side. 

I see nothing untoward in that, and I dismiss the application.