Mbuzi v Hird [2022] FCA 1285
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Appeal from: |
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File number: |
QUD 59 of 2022 |
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Judgment of: |
RANGIAH J |
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Date of judgment: |
31 October 2022 |
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Catchwords: |
PRACTICE AND PROCEDURE – Appeal from decision of Federal Circuit and Family Court of Australia (Division 2) to dismiss application for review of Registrar’s decision – where Registrar refused to accept an originating application for filing on the basis that it constituted an abuse of process – whether primary judge failed to provide adequate reasons – whether primary judge erred in failing to consider submissions – where error did not give rise to any substantial miscarriage of justice – where originating application was an abuse of process – appeal dismissed |
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Legislation: |
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16(1) Competition and Consumer Act 2010 (Cth) s 138A, Sch 2, Australian Consumer Law ss 2, 18, 20, 21, 22 Federal Circuit Court of Australia Act 1999 (Cth) s 10(2) Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 131, 134, 217(1), 256 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 1.31, 1.32, 2.06, 21.01 Federal Court of Australia Act 1976 (Cth) ss 19(1), 28(1)(f), 32(1), 59(1) Federal Court Rules 2011 (Cth) r 2.26 Judiciary Act 1903 (Cth) s 39B State Penalties Enforcement Act 1999 (Qld) ss 7, 8, 9, 33, 34, 35, 102(1), 103(1)
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Cases cited: |
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 Bride v Shire of Katanning [2016] FCA 65 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 Conway v The Queen (2002) 209 CLR 203 Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343 DL v The Queen (2018) 266 CLR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Felton v Mulligan (1971) 124 CLR 367 Fencott v Muller (1983) 152 CLR 570 Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 Goodwin v Commissioner of Police [2010] NSWCA 239 Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351 Johnson v Johnson (2000) 201 CLR 488 Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Markit Pty Ltd v Commissioner of Taxation (Cth) [2007] 1 Qd R 253 Mbuzi v Hird [2022] FedCFam2CG 38 Miller v Haweis (1907) 5 CLR 89 Murphy v Victoria (2014) 45 VR 119 Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Qantas Airways Ltd v Lustig (2015) 228 FCR 148 R v T, WA (2014) 118 SASR 382 RPS v The Queen (2000) 199 CLR 620 Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606; (2022) 176 ALD 1 Walton v Gardiner (1993) 177 CLR 378 Westpac Banking Corp v Paterson (1999) 95 FCR 59; (1999) 167 ALR 377 Windoval Pty Ltd v Donnelly (2014) 226 FCR 89 Winn v Boss Lawyers Pty Ltd [2022] FCAFC 156 |
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Division: |
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Registry: |
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National Practice Area: |
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Number of paragraphs: |
86 |
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Date of last submission/s: |
25 July 2022 (Appellant) |
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Date of hearing: |
4 August 2022 |
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Counsel for the Appellant: |
The Appellant appeared in person |
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Counsel for the Respondent: |
The Respondent filed a submitting notice |
ORDERS
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QUD 59 of 2022 |
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BETWEEN: |
JOSIYAS MBUZI Appellant
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AND: |
REGISTRAR HIRD Respondent
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order made by: |
RANGIAH J |
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DATE OF ORDER: |
31 OCTOBER 2022 |
THE COURT ORDERS THAT:
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The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
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Background |
[5] |
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The judgment of the primary judge |
[12] |
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The appeal |
[17] |
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Allegations of apprehended bias |
[24] |
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Allegations of inadequacy of reasons and denial of procedural fairness |
[36] |
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The allegation that the primary judge was wrong in concluding that the Registrar’s decision did not contain error |
[47] |
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Conclusion |
[86] |
RANGIAH J:
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On 15 September 2021, the appellant lodged an “Application – General Federal Law” (the rejected application) and two accompanying documents for filing in the Federal Circuit and Family Court of Australia (Division 2) (the FCFCOA (Div 2)).
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On 21 September 2021, the respondent, a registrar of the FCFCOA (Div 2) (the Registrar), decided, purportedly under r 2.26 of the Federal Court Rules 2011 (Cth), that the appellant’s documents should not be accepted for filing.
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The appellant then filed an application in the FCFCOA (Div 2) seeking review of the Registrar’s decision. On 3 February 2022, in Mbuzi v Hird [2022] FedCFam2CG 38, the primary judge dismissed the appellant’s application for review.
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The appellant now appeals to this Court against the judgment of the primary judge.
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The appellant has not placed the rejected application and other rejected documents before the Court. It seems that the rejected application named only one respondent, “State Penalties Enforcement Registry” (SPER).
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The content of the rejected application may be inferred from a document that has been placed before this Court, namely a proposed amended application relied upon before the primary judge. The proposed amended application sought to add and seek relief against Australian and New Zealand Banking Group Limited (ANZ) as a respondent. I infer that the rejected application did not otherwise differ from the proposed amended application.
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The appellant’s proposed amended application sought:
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orders declaring a notice given by SPER stating that the appellant owed a debt of $8,458.40 to be invalid;
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an injunction restraining SPER and ANZ from causing funds to be removed from the appellant’s bank account in relation to the alleged debt;
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a declaration that SPER had engaged in, “unconscionable, misleading and deceptive, false representations and undue harassment”; and
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damages.
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The appellant’s proposed amended application alleged that SPER had engaged in conduct that was, “unconscionable, undue harassment, misleading and deceptive and false representations in its claims that the respondent (sic) owes a debt to it of $8,458.40”, and in saying that the debt, “won’t go away”. The appellant alleged that ANZ was negligent in claiming that notices from SPER requiring that ANZ redirect funds from his bank account are “court orders”. The appellant claimed to have suffered emotional distress and other loss and damage as a result of the conduct of SPER and ANZ.
On 21 September 2021, the Registrar wrote to the appellant informing him that the rejected application and accompanying documents would not be accepted...
