Cooper v Mbuzi (No 2) [2012] QSC 152

SUPREME COURT OF QUEENSLAND CITATION: Cooper v Mbuzi (No 2) [2012] QSC 152 PARTIES: GREGORY R COOPER (applicant) v JOSIYAS ZIFANANA MBUZI (respondent) FILE NO: BS7491 of 2011 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 13 June 2012 DELIVERED AT: Brisbane HEARING DATE: Application determined on the papers JUDGE: Mullins J ORDER: 1. Pursuant to s 6(2)(a) of the Vexatious Proceedings Act 2005, proceeding BS9129 of 2011 (Mbuzi v Redlich) commenced in the Supreme Court of Queensland by the respondent is stayed. 2. The issue of costs of the application on the papers is adjourned to a date to be fixed. 3. A copy of this order must also be filed in proceeding BS9129 of 2011 (Mbuzi v Redlich). CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTER – VEXATIOUS LITIGANTS AND PROCEEDINGS – whether vexatious proceedings order should be made against the respondent under Vexatious Proceedings Act 2005 (Qld) Vexatious Proceedings Act 2005, s 6 Griffith University v Tang (2005) 221 CLR 99, considered SOLICITORS: G R Cooper Crown Solicitor for the applicant The respondent appeared in person [1] In this proceeding I published my reasons on 24 April 2012 for making a declaration pursuant to s 6(1)(a) of the Vexatious Proceedings Act 2005 (the Act) that the respondent is a person who has frequently instituted or conducted vexatious proceedings in Australia and for orders pursuant to s 6(2)(a) and (b) of the Act: Cooper v Mbuzi [2012] QSC 105 (the reasons). [2] Paragraph 5 of the orders made on 24 April 2012 was in the following terms: -- 1 of 5 -- 2 “It is directed that: (a) within 7 days of the date of which these reasons are published the applicant may give notice in writing to the respondent whether he seeks an order pursuant to s 6(2)(a) of the Act staying proceeding BS9129 of 2011 (Mbuzi v Redlich) and, if so, identify the affidavits and submissions that have been filed in any proceeding that are relied on for seeking the order; (b) if such notice is given, within 21 days of the date on which these reasons are published the respondent may file and serve on the applicant any affidavit that he wishes to rely on that are not yet filed in any proceeding and any submissions that he wishes to make on whether proceeding BS9129 of 2011 should be stayed pursuant to s 6(2)(a) of the Act and identifying the affidavits and submissions relied on; (c) within 7 days of the service of the respondent‟s submissions, the applicant may file and serve on the respondent any submissions in response; (d) unless either party in the written submissions requests a hearing, or a hearing before a judge other than Mullins J, the issue of whether proceeding BS9129 of 2011 should be stayed pursuant to s 6(2)(a) of the Act will be determined on the papers.” [3] As contemplated by paragraph 5(a) of the orders, the Crown Solicitor sent a letter by post on 30 April 2012 addressed to the respondent‟s address for service and sent an email attaching that letter on the same date to the respondent notifying the respondent of the Crown Solicitor‟s intention to seek an order pursuant to s 6(2)(a) of the Act staying proceeding BS9129 of 2011 (the Redlich proceeding). The Crown Solicitor also identified that he relied on court file document numbers 1 to 6 and 8 to 12 on the file for the Redlich proceeding. [4] On 24 April 2012 I also published reasons in the Redlich proceeding (Mbuzi v Redlich [2012] QSC 106) for ordering that proceeding be stayed until the determination in proceeding BS7491 of 2011 of whether the Redlich proceeding should be stayed pursuant to s 6(2)(a) of the Act, or earlier order. Subsequent communications to the Crown Solicitor’s notice of intention to seek an order staying the Redlich proceeding [5] Apart from giving notice of intention to seek an order staying the Redlich proceeding, the Crown Solicitor in his letter made the following comments: “First I bring your attention to the comments by Justice Mullins at paragraphs [90] to [95] of her judgment in Cooper v Mbuzi. Her Honour identifies fundamental difficulties with your application in proceeding BS9129 of 2011 and suggests that you may wish to bring the proceeding to an end. I commend this path to you as it is clear that your application is doomed to failure.” [6] The respondent sent an email to the Crown Solicitor on 1 May 2012 in which reference was made to the letter of 30 April 2012 and the following statement made: “I do not welcome your unsolicited advice, and in any case, any reasonable person would acknowledge the inappropriateness of a -- 2 of 5 -- 3 party with whom I have an adversarial relationship offering „advice‟.” [7] The respondent has not filed and served on the Crown Solicitor any affidavit or submissions on the issue of whether the Redlich proceeding should be stayed pursuant to s 6(2)(a) of the Act. [8] Mr Prowse, the solicitor within the Crown Solicitor‟s office who has the conduct of this matter, filed his affidavit in this proceeding on 23 May 2012 which deposed to the correspondence between the parties on 30 April and 1 May 2012 and the lack of any material filed by the respondent in compliance with order 5(b) of the orders made on 24 April 2012. [9] On 31 May 2012 my Associate received an email from Mr Prowse that was copied to the respondent that advised of the filing of Mr Prowse‟s affidavit on 23 May 2012 and set out his instructions to request me to proceed to determine the issue of whether the Redlich proceeding should be stayed and confirmed that the applicant did not request a hearing on that issue. [10] On 31 May 2012 my Associate received an email from the respondent that was copied to Mr Prowse in the following terms: “I have today (31 May 2012) received a copy of an email sent to you by Mr Prowse in which he appears to re-apply an already failed application to include the Mbuzi v Redlich matter to be among matters to be stayed under Cooper v Mbuzi matter. This ought not to be allowed because it is not provided for under law and would therefore be miscarriage of justice against me. I would like to draw your attention to the following in the transcripts covering all the matters Her Honour dealt with on 17 November 2011. 1. At page 45 paragraph 40 in the transcript of proceedings before Justice Mullins, Her Honour acknowledges my success as above. There is no new material to warrant revisiting the matter. The suggestion by Her Honour in the written judgment delivered on 24 April 2012 for the Mbuzi/Redlich parties to attempt to end the matter themselves is what should stand. The Court has already wasted a lot of time on Mr Cooper's application. 2. In any case, the outstanding issue related to the type of directions to be given, and not whether or not directions should be given, as per Page 44 paragraph 1 of the transcript of proceedings before Justice Mullins on 17 November 2012. In reserving decision about the sort of directions to be given, Her Honour fully considered whether the Mbuzi v Redlich matter fell within the category of vexatious proceedings. it should further be recalled that there is an Order given by another Supreme Court Judge for the directions to be given. No appeal has been made in relation to that order.” Should the Redlich proceeding be stayed? -- 3 of 5 -- 4 [11] The arguments advanced by the respondent in his email of 31 May 2012 raise whether I should have made the directions that are found in paragraph 5 of the orders made on 24 April 2012. I made those directions for the reasons set out in paragraphs [90] to [95] of the reasons, despite the argument advanced by Mr Mbuzi on 17 November 2011 that I was bound to make directions in the Redlich proceeding as Douglas J had ordered the matter be adjourned to 17 November 2011 for directions only. I propose to proceed to determine the issue on the papers of whether in this proceeding I should order a stay of the Redlich proceeding under s 6(2)(a) of the Act. Neither party has requested that the issue be determined by another judge. [12] Under s 6(4) of the Act, the court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. The directions contained in paragraph 5 of the orders made on 24 April 2012 gave the respondent the opportunity to make submissions in response to the Crown Solicitor‟s notification of the affidavits and submissions relied on by the Crown Solicitor for seeking to have the Redlich proceeding stayed pursuant to s 6(2)(a) of the Act. Apart from relying on procedural points, the respondent has declined to address the substantive issue of whether a vexatious proceedings order should be made against him in relation to the Redlich proceeding, but he was given the opportunity to do so. [13] In paragraphs [40] to [51] of the reasons, I set out the history of proceedings BS5009 and BS7052 of 2011 commenced by the respondent against persons associated with Griffith University arising out of student misconduct proceedings. The respondent appealed against the decision of the University‟s Student Misconduct Committee to the Misconduct Appeals Committee. Mr Redlich was the chairperson of that Committee that comprised three members. Submissions were made on behalf of Mr Redlich in the Redlich proceeding (which are relied on by the Crown Solicitor in this proceeding) to the effect that the Redlich proceeding was the third proceeding commenced by the respondent in a period of four months concerning the same issues of student misconduct and the Redlich proceeding appeared bound to fail on the basis that it was in substance an application for relief under the Judicial Review Act 1991, but the decision the subject of the application was not reviewable under that Act, because it was not a decision made under an enactment: Griffith University v Tang (2005) 221 CLR 99, 132 [96]. [14] Despite the fact that the respondent has been informed by the submissions made on behalf of Mr Redlich that the Redlich proceeding appeared doomed to fail, the Redlich proceeding has remained extant. In light of this and the matters traversed in the reasons dealing with the other proceedings arising out of the student misconduct process involving the respondent at Griffith University, I am satisfied that the Redlich proceeding is an abuse of the process of the court and has been pursued without reasonable ground. In these circumstances and in view of the declaration which I made against the respondent under s 6(1)(a) of the Act in this proceeding on 24 April 2012, it is appropriate to exercise the discretion to make a vexatious proceedings order against the respondent in relation to the Redlich proceeding. [15] I therefore make the following orders: 1. Pursuant to s 6(2)(a) of the Vexatious Proceedings Act 2005, proceeding BS9129 of 2011 (Mbuzi v Redlich) commenced in the Supreme Court of Queensland by the respondent is stayed. -- 4 of 5 -- 5 2. The issue of costs of the application on the papers is adjourned to a date to be fixed. 3. A copy of this order must also be filed in proceeding BS9129 of 2011 (Mbuzi v Redlich). -- 5 of 5 --