Barber v Mbuzi[2015] QCA 269

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  On 24 April 2012 it was declared that the respondent is a person who has frequently instituted or conducted vexatious proceedings in Australia within the meaning of s 6 of the Vexatious Proceedings Act 2005 (“the Act”).[1]  It was ordered pursuant to s 6(2)(b) of the Act that the respondent was prohibited from instituting proceedings in any Queensland Court, apart from an appeal from those orders.  Section 10(1)(a) of the Act therefore prohibited the respondent from instituting proceedings in Queensland without the leave of the Court under s 13.

[2] On 22 April 2015 the respondent applied for leave to apply for an injunction to restrain the applicant from suspending the respondent’s driver’s licence and other orders.  That application was not served on any person, in conformity with s 11(4)(a) of the Act.  Contrary to Practice Direction 5 of 2010 the application also sought the grant of the injunction and other orders.

[3] On the same day, a judge sitting in the applications jurisdiction (“the primary judge”) granted leave to the respondent to institute proceedings, granted an injunction restraining the Registrar appointed under the State Penalties Enforcement Act 1999 (Qld) from taking any action to enforce  the applicant’s notice of intention to suspend the respondent’s driver licence until further orders, directed that any application for a permanent injunction against the Registrar in respect of that notice of intention must be filed and served before specified times, and made an order reserving costs.

[4] The applicant has applied for an extension of time within which to appeal against those orders.  In accordance with the usual practice of the Court in matters of this kind, the Court heard argument upon the proposed appeal together with argument about the application for an extension of time, with a view to deciding the appeal on its merits if the extension were granted.

The primary judge’s reasons

[5] The primary judge gave the following reasons for those orders:

“This is an application by an … unrepresented litigant who is required to seek leave of the court to issue or serve any court proceedings in Queensland because of a vexatious litigant declaration made by Justice Mullins on the 24th of April 2012.  A notice has been issued to the applicant by the State Penalties Enforcement Registry that unless an alleged overdue debt of $284.05 is paid by the 24th of April 2015 his drivers licence will be automatically suspended until the amount is paid. … [T]o the extent that that notice has legal effect, it will be an offence for the applicant under the Transport Operations (Road Use Management) Act 1995 for him to drive a vehicle and he would face heavy penalties to a maximum of $4400 or 12 months’ imprisonment and would also be disqualified from holding or obtaining a drivers licence for a period of up to six months.

The debt details in the notice, which is exhibit 1 to the applicant’s affidavit, indicate overstaying a parking time limitation apparently, at least, according to the applicant, at the Griffith University campus on the 29th of November 2013.  The applicant denies liability for the fine and therefore for the debt.  He says that the first he knew of the alleged fine and debt was when he received the SPER notice shortly after the 9th of April 2015.  He seeks to be relieved of any obligation to pay the debt or from any penalty for not having done so until such time as he can challenge liability.  Because of his vexatious litigant status, these proceedings are necessary ex parte.  I’m prepared to make interim orders for the purpose of ensuring that the applicant’s legal rights are not denied because of his status or because the process has failed.”

Consideration

[6] The respondent advanced arguments to the effect that the applicant has no right of appeal because there is no existing order against which an appeal might be brought, there is no right of appeal because the decision of the primary judge did not finally determine any issue, there is no right to stay a proceeding in relation to which there is no right of appeal,  and the applicant has no right to appeal against its undertaking not to enforce the suspension of the respondent’s licence which the applicant gave at a hearing after the primary judge’s decision.

[7] For the following reasons, which substantially accept submissions made by the applicant, the respondent should not have been given leave to commence the proceedings.

[8] First, the order made by the primary judge granting the respondent leave to institute proceedings was made in disregard of the mandatory and unambiguous requirements of s 13(1) of the Act.  That subsection provides that:

“Before the Court grants an application made under section 11 for leave to institute a proceeding, it must … order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application; and … give the applicant and each relevant person, on appearance, an opportunity to be heard at the hearing of the application.”

“Relevant person” is defined in s 13(5).  The definition includes the proposed respondent to the proceeding, the Attorney General, and the Crown Solicitor.  To meet the purposes of the Act, an order for service under s 13(1)(a) should be made only if the judge who hears the application provisionally decides that, subject only to hearing any submission a relevant person might wish to make, it may be appropriate to grant the application.  The primary judge, having decided that it was appropriate to grant leave, should not have granted leave without first making the order for service required by s 13(1)(a) and affording the present applicant or any other “relevant person” the opportunity to be heard required by s 13(1)(b).

[9] Secondly, s 12 of the Act required the primary judge to dismiss the respondent’s application for four separate reasons.

[10] Section 12(1) provides that “the Court must dismiss an application made under section 11 for leave to institute a proceeding if it considers –

(a)the affidavit does not substantially comply with section 11(3); or

(b)the proceeding is a vexatious proceeding.”

[11] Section 11(3) requires an applicant for leave under the Act to “file an affidavit … that –

(a) lists all occasions on which the applicant has applied for leave under – (i) this section; …

(b) lists all other proceedings the applicant has instituted in Australia . . . and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.”

[12] The respondent’s affidavit did not comply with the requirements of s 11(3)(a).  The affidavit included a statement that certain exhibits were “provided to comply with the requirements for seeking leave”.  Those exhibits included copies of orders which granted or referred to a grant of, or application for, leave pursuant to s 11.  This falls short of substantial compliance with the requirement in s 11(3)(a) that the affidavit list “all occasions on which the applicant has applied for leave”.

[13] The affidavit also did not comply with s 11(3)(b).  Another exhibit to the affidavit is a list of 20 decisions in various Courts and Tribunals which name the respondent as the plaintiff.  Annotations on the list suggest at least a possibility that this is only one of the two pages responding to a search of a database for cases in which the word “Mbuzi” appears.  Whether or not that is so, the list is incomplete.  It does not include two cases[2] of the seven cases referred to in paragraph 3 of the reasons in Cooper v Mbuzi.[3]  Whether or not there are other cases missing cannot be gleaned from the affidavit.  The requirement that the affidavit list all occasions on which the applicant has applied for leave and all other proceedings the applicant has instituted in Australia require the applicant to depose to those matters by affidavit.  The respondent’s affidavit did not do so.  It included no statement to the effect required by s 11(3)(a) and (b) and the lists in the exhibits were not described or verified in the affidavit.

[14] The respondent’s affidavit also did not comply with s 11(3)(c) of the Act.  The claim for an injunction could succeed only if there was a basis in law for restraining the applicant from suspending the respondent’s licence.  The only statement in the affidavit conceivably relevant to that issue was that the exhibited “notice of intention to suspend driver licence” was issued by the applicant “and that although I deny the alleged debt absolutely and also elected to defend the matter in court, an officer from SPER … said the notice would be acted upon regardless.”  That the respondent regarded other facts as being material to his proposed proceedings against the applicant is clear because the respondent made submissions to the primary judge to the effect that:

(a) The parking offence referred to in the notice was committed by someone else.

(b) He had not been given notice of that offence before he received the notice of intended suspension of his driver license.

(c) On 31 March 2015 he wrote a letter to the applicant of that date by which he denied the applicant’s allegation that $284.05 was outstanding against him, advised the applicant to proceed to court and that he would defend the matter, demanded that the applicant withdraw threats made in an overdue account reminder dated 13 March 2015 and advise him accordingly by 15 April 2015, and threated to sue in the Supreme Court if the threats were not withdrawn by that date.

[15] The primary judge relied upon the alleged facts in [13](a) and (b) in making the observations that the applicant “denies liability for the fine and therefore for the debt” and “says that the first he knew of the alleged fine and debt was when he received the SPER notice shortly after the 9th of April 2015.”  Those alleged facts were plainly material.  No doubt that is why the respondent relied upon them in submissions before the primary judge, as the respondent also did in this application.  The alleged fact in [13](c) was also material, if only because it was adverse to the respondent’s application.  It contradicted the alleged fact in [13](b).  The respondent could not have first learned of the alleged debt when he received a notice shortly after 9 April 2015 if, as he also stated, he sent the letter of 31 March 2015.  The transcript reveals that the respondent handed up a copy of that letter to the primary judge during the hearing, although it was not marked as an exhibit.  It and other relevant documents, including an overdue account reminder from the applicant to the respondent dated 13 March 2015 referred in it, were in the appeal record as exhibits to an affidavit of Mr Theochari sworn on 12 May 2015, which was filed by the applicant for use in a hearing of the respondent’s claim for an injunction.  The respondent relied upon that affidavit in this application.  The 13 March 2015 overdue account reminder clearly identifies the claimed debt of $284.05 and its components, which include $178.85 for an original debt in relation to a fine issued by Griffith University for a parking offence alleged to have been committed on 29 November 2013.

[16] Section 12(1)(b) also required the primary judge to dismiss the respondent’s application.  Upon the evidence before the primary judge, the proceeding proposed by the applicant would be “a vexatious proceeding”.

[17] The State Penalties Enforcement Act 1999 (Qld) confers upon the applicant the power to issue a notice of intention to suspend a driver licence on account of an unpaid debt for a traffic offence.  The effect of the respondent’s argument before the primary judge was that the Registrar of the State Penalties Enforcement Registry lacked power to issue the notice of intention to suspend driver licence because the respondent had elected to contest the traffic charges against him.  His own statements to the primary judge made it plain that any election he made to defend the traffic charge was not made until 15 April 2015, which was long after the date of the offence and also after the date upon which the notice of intention to suspend driver licence was issued (9 April 2015).  Section 104 of the State Penalties Enforcement Act 1999 (Qld) empowers the Registrar to suspend an enforcement debtor’s driver licence in a variety of circumstances, including where the enforcement debtor has “taken no action to have the matter of the offence decided in a court”.[4]  Upon the respondent’s own statements, that was the case.  The evidence thus suggested that the Registrar was empowered to suspend the respondent’s driver licence; there was no evidence to justify a finding to the contrary.

[18] Where the Registrar decides to suspend an enforcement debtor’s driver licence, the Registrar must serve upon the enforcement debtor a notice of intention to suspend the licence.[5]  That is what the Registrar did, upon the respondent’s own evidence.  If the enforcement debtor does not pay the unpaid amount stated in the notice within 14 days the driver licence is suspended and remains suspended until the enforcement debtor pays the unpaid amount or that amount is otherwise discharged under the State Penalties Enforcement Act 1999 (Qld).[6]  No basis appeared in the evidence to justify a conclusion that s 105 did not take effect according to its terms.

[19] Furthermore, the application before the primary judge did not seek judicial review of the applicant’s administrative decision to issue the notice, and in any event Pts 3 and 4 of the Judicial Review Act 1991 (Qld) do not apply to a decision (including conduct engaged in for the purpose of making a decision, other conduct relating to making the decision, and the making of the decision) “of the registrar to issue … a notice of intention to suspend a driver licence under s 105”.[7]  Section 155(3) of the State Penalties Enforcement Act 1999 (Qld) expressly provides that “the Supreme Court does not have jurisdiction to hear and decide applications made to it under the Judicial Review Act 1991, part 3 or 4” about such matters.  Despite those provisions, a notice of intention to suspend might be challenged on the ground of jurisdictional error,[8] but there was no basis in the evidence for holding that the applicant lacked jurisdiction to decide to suspend or to enforce the suspension of the respondent’s licence.

[20] Those were yet further obstacles in the way of the respondent’s proposed application for an interlocutory injunction.  In order to obtain the interlocutory injunction which the respondent proposed to apply for in the proceeding which he sought leave to institute, the respondent ordinarily would need to demonstrate that there was a probability that at the trial of the claim against the applicant the respondent would be found entitled to the grant of a final injunction and that the inconvenience or injury which the respondent would likely suffer if an interlocutory injunction were refused outweighed the injury which the applicant would suffer if an injunction were granted.[9]

[21] It follows from reasons already given that the respondent did not establish a probability that he would be entitled to a final injunction; rather, upon his evidence and statements any such injunction inevitably would be refused.

[22] Nor did the respondent demonstrate that the inconvenience or injury he would suffer if an injunction were refused outweighed the injury the applicant would suffer if the injunction were granted.  The respondent’s application before the primary judge sought an order that the present applicant pay the respondent’s costs fixed at $350 “for court application fees, travel, documents preparation and car parking fees.”  Remarkably, the respondent himself thereby claimed that his own costs (which did not include any legal costs) exceeded the amount which would be in issue in his proposed litigation in the Supreme Court.  There was no evidence that if the respondent’s claim for a final injunction failed there was any prospect that the applicant would be able to recover from the respondent the far more substantial costs which the applicant inevitably would incur in defending the respondent’s claim for a final injunction.  No explanation was given as to why the respondent could not simply secure his licence by paying the relatively small amount claimed in the notice and then seek to vindicate his claimed entitlement by bringing proceedings for a refund of that amount.

[23] Furthermore, there was no ground for dispensing with the usual undertaking as to damages, which is nearly always required of an applicant for an interlocutory injunction as a condition of granting such an injunction.[10]

[24] Upon the face of the respondent’s own evidence and statements, his proposed proceeding was therefore “without reasonable ground”, and was thus a “vexatious proceeding” as that term is defined in the Act.[11]

The respondent’s additional arguments

[25] The respondent invited the Court to decide afresh that leave should now be granted to him to institute the proceedings.  Assuming, without deciding, that the Court might do so in an appropriate case, it is not appropriate to do so in this case.  The respondent sought support for his submissions in the affidavit of Mr Theochari.  It reveals that the applicant issued the respondent with an enforcement order of 3 March 2014 which the respondent did not elect to have referred to Court within the 28 days specified in the enforcement order, on 13 March 2015 the applicant issued the respondent with an overdue account reminder for the outstanding amount of $284.05, and the respondent corresponded with the applicant about the enforcement order without making any election to have the matter referred to the Magistrates Court for determination.  The respondent’s subsequent purported election by a letter he sent on 15 April 2015 was outside the 28 day limit specified in the enforcement order of 3 March 2014.  Mr Theochari’s evidence confirms that the respondent lacked any reasonable basis for the injunction he sought.

[26] The respondent argued that ss 19 and 159 of the State Penalties Enforcement Act 1999 (Qld) required the conclusion that the applicant was not entitled to proceed to suspend the respondent’s driver licence.  Those sections provide:

“19Effect of known user declaration

(1)This section applies if—

(a)an infringement notice offence involving a vehicle happens; and

(b)an infringement notice for the offence is served on the person who is the owner of the vehicle at the relevant time; and

(c)the person makes and gives to the administering authority a known user declaration for the vehicle.

(2)This section and section 17 apply as if the person named in the declaration as the person in charge of the vehicle at the relevant time (the user) were the owner of the vehicle at that time.

(3)A proceeding for the offence may be started against the user only if a copy of the declaration has been served on the user.

(4)In a proceeding for the offence against the user, the declaration is evidence that the user was in charge of the vehicle at the relevant time.

(5)In a proceeding for the offence against the owner mentioned in subsection (1)(b), a court must not find the owner guilty of the offence if it is satisfied, whether on the statements contained in the declaration or otherwise, the owner was not in charge of the vehicle at the relevant time.

…

159Proceedings for offences

A proceeding for an offence against this Act may be taken by way of summary proceedings under the Justices Act 1886—

(a)within 1 year after the commission of the offence; or

(b)within 6 months after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.”

[27] The respondent’s argument about s 19 focussed upon s 19(5).  He referred to a note in the “Debtor Profile Report” exhibited to Mr Theochari’s affidavit.  The note refers to a telephone conversation on 18 March 2014.  The respondent argued that in that conversation a person named “Christopher” advised someone in the State Penalties Enforcement Registry that he, Christopher, was the driver of the respondent’s vehicle and owed $178.00 to “dbtr” (apparently a reference to the respondent).  The note records:

“Gave Christopher two options: 1. Get dbtr to call us to organise driver nomination. 2. Set up DDIP and then call us to cancel it when he feels that it has covered the full fine amount.  He will speak to dbtr and call us back as to what action he will take.”

[28] The respondent argued that this evidence would require a court to find him not guilty of the parking offence because there was clearly a statement “contained in the declaration or otherwise” that the respondent was not in charge of the vehicle at the time of the alleged parking offence.  The argument overlooked s 19(1).  Section 19, including s 19(5), applies only in the circumstances described in s 19(1)(a) – (c).  The respondent did not adduce evidence that he had given to “the administering authority a known user declaration for the vehicle”.  Presumably the document referred to in the conversation as the “driver nomination” was such a notice, yet the respondent still failed to supply it to the applicant.

[29] The respondent’s argument in relation to s 159 was that the proposed enforcement action by the applicant (by way of suspending the respondent’s driving licence) was precluded by that section because it would be taken outside the time limits.  The argument could not succeed.  The suspension of a driver license is an administrative procedure.  It is not a proceeding for an offence against the State Penalties Enforcement Act 1999 (Qld) taken by way of summary proceedings under the Justices Act 1886 (Qld).

The applicant’s right of appeal

[30] The respondent argued that there was no right of appeal because the order of the primary judge was an interlocutory order which did not finally dispose of the issues.  It is not relevant in this context to inquire whether the order appealed against is an interlocutory order or a final order.  Section 62 of the Civil Proceedings Act 2011 (Qld) confers a right of appeal to the Court of Appeal from “any judgment or order of the Court in the Trial Division.”  The cases about leave to appeal which the applicant cited for the contrary proposition are not on point.  They concerned appeals from the District Court rather than from the Trial Division of the Supreme Court.  Section 11(6) of the Act precludes an “applicant for leave to institute proceedings” from appealing from a decision disposing of the application.  Contrary to one of the respondent’s arguments, it does not preclude an appeal by any person adversely affected by an order granting leave.

[31] The respondent argued that the proposed appeal lacked merit because the injunction had been vacated in a subsequent proceeding and the applicant had offered an undertaking in similar terms.  On 12 May 2015 a different judge vacated the injunction granted by the primary judge on 22 April 2015 upon an undertaking by the “State Penalties Enforcement Registry” not to take any steps to enforce the notice to suspend driver license dated 9 April 2015, until further order.  The respondent’s application for a permanent injunction was adjourned, and the costs were reserved.  The transcript of the hearing reveals that the applicant submitted that the orders made by the primary judge should be set aside because they lacked any legal basis.  Because the respondent required time to read an affidavit served that morning, the judge intimated that he would not adjudicate upon the dispute.  That judge vacated the primary judge’s order for the interlocutory injunction upon an undertaking by the applicant that it would not take enforcement action until further order.  Contrary to the respondent’s argument, there remains a real point in the applicant’s proposed appeal against the order of the primary judge granting leave to institute proceedings.  That proceeding should be terminated and the applicant should be released from her undertaking.

[32] The respondent argued that the applicant’s proposed appeal contravened the undertaking it gave on 12 May 2015.  That is not so.  Pursuit of an application for an extension of time within which to appeal and the pursuit of such an appeal against the orders of 22 April do not amount to steps taken to enforce the proposed suspension.  As I have mentioned, the order vacating the injunction granted on 22 April 2015 and adjourning the application to 17 June 2015 was made upon the respondent’s undertaking not to enforce the proposed suspension of the respondent’s driver licence until further order.  The applicant was at liberty to seek such an order either in further proceedings in the Trial Division or as an appropriate consequential order on appeal.

Extension of time for appealing

[33] For this kind of appeal a notice of appeal must be filed within 28 days after the date of the decision appealed from unless the Court of Appeal orders otherwise.[12]  The applicant filed the present application on 28 May 2015, more than 28 days after the order of the primary judge of 22 April 2015.  By way of explaining the delay, an affidavit by Ms Wickramasinghe, a lawyer employed in the office of the Crown Solicitor, deposed that the order of 22 April 2015 had been granted ex parte and the applicant had not been served with a copy of the application, she was informed and believed that the applicant first became aware of the order on 30 April 2015 when the respondent purported to serve upon the applicant an application and supporting affidavit in accordance with the order of 22 April 2015, and the applicant did not receive a transcript of the proceeding until 20 May 2015.

[34] The respondent opposed the application for an extension of time.  In an affidavit sworn and filed on 31 August 2015 the respondent deposed that on 22 April 2015 he notified the applicant in a telephone conversation about the primary judge’s decision and requested an appointment to personally “hand in the order concerned”.  He deposed that the request was refused, and that he was told not to send the order by fax or email but that the applicant wanted the Court to serve the order.  The Legal Aid Office advised him to contact the Queensland Ombudsman, and the Ombudsman advised that it would pass on a scanned copy of the order to the appellant.  A copy of an email from the Ombudsman to the respondent refers to an email from the respondent dated 22 April 2015, which is not exhibited, and to a telephone conversation the same day, but does not refer to the order.  The respondent relied upon a note on the “debtor profile report” exhibited to the affidavit of Mr Theochari.  The note refers to a phone call between an unidentified person and the respondent on 22 April 2015.  It attributes to the “debtor” a reference to possession of “court document/order advising SPER to stop EA” and that the debtor “wants to hand documents to SPER.”  This suggests that the respondent advised that he had and wished to serve a court document or an order advising the applicant to stop enforcement action.  A note referring to a conversation a few minutes later on the same day records that “the debtor said he had an application to give him [meaning the Registrar]” and that when the respondent was asked what the application was he responded that “it was none of my business but he needed to give it to him in person.”  There is then a reference to an email on 24 April 2015 from the Ombudsman which is said to have included a letter of complaint from the respondent which stated that he was “compelled to go to the Supreme Court and obtain an injunction to restrain SPER from suspending the debtor’s licence” and that he had tried three times to hand over the court order.  There was no court order attached to the Ombudsman’s email.  Another note records a conversation on 27 April 2015 about service of “the papers”.

[35] Upon the basis of this evidence the respondent unjustifiably accused the applicant’s barrister and employed lawyer of misconduct in wrongly stating that the applicant first became aware of the order on 30 April 2015.  There is no evidence that when the barrister and employed lawyer made those statements either of them knew or should have known that there had been communications in the terms deposed to by the respondent.

[36] The respondent also argued that the extension of time sought by the applicant should not be granted, or the appeal should be dismissed, because it was not in the public interest to have litigation about a dispute which involved such a small amount as $178.00.  It is certainly not in the public interest that there be a dispute in the Supreme Court about $178.00, but it was the respondent, not the applicant, who brought the proceedings in the Supreme Court.  The effect of the respondent’s argument was that the applicant should abandon what, on their face, appear to be conventional enforcement proceedings because the respondent has commenced legal proceedings in the Supreme Court.  There is obviously no merit in that argument.

[37] Even adopting the interpretation most favourable to the respondent of his evidence and the notes in the “debtor profile report”, the application for an extension of time should be granted.  Whilst a satisfactory explanation for delay in appealing is necessary in some cases, its absence is not an insuperable obstacle to an extension of time.[13]  Notwithstanding the absence of any apparent basis for the injunction sought by the respondent, the primary judge’s orders which the applicant seeks to challenge have already resulted in more than one hearing.  If the litigation is permitted to continue the parties and the public inevitably will bear yet more expense whilst the respondent pursues hopeless litigation in the Supreme Court over an amount of less than $300.  This would be contrary to the public interest which the Act was designed to protect.  The overwhelming merits of the proposed appeal, the shortness of the applicant’s delay in appealing and the public interest in the elimination of vexatious proceedings combine to compel the conclusion that it is appropriate to extend time.

Disposition of the appeal and proposed orders

[38] The following orders are appropriate:

(a) Grant the application for an extension of time within which to appeal.

(b) Allow the appeal.

(c) Set aside the orders made on 22 April 2015.

(d) Refuse the respondent’s application filed 22 April 2015.

(e) Dismiss the respondent’s proceedings in the Trial Division.

(f) Order the respondent to pay the applicant’s costs (including any reserved costs) of the applicant’s application for an extension of time, this appeal, and the respondent’s proceedings in the Trial Division.

(g) Grant the applicant leave to withdraw the undertaking to the Court recited in the order made on 12 May 2015.

[39] PHILIPPIDES JA:  I agree with the reasons and orders of Fraser JA.

[40] ATKINSON J:  I agree with the reasons given and orders proposed by Justice Fraser.