Collection House Limited v Mbuzi [2008] QDC 60

1 [2008] QDC 60 DISTRICT COURT CIVIL JURISDICTION JUDGE KINGHAM No 3412 of 2005 COLLECTION HOUSE LIMITED ACN 010230716 Applicant and JOSIYAS MBUZI Respondent BRISBANE ..DATE 25/02/2008 ORDER -- 1 of 6 -- 2 ORDER 1 10 20 30 40 50 60 HER HONOUR: This is an application by Collection House Limited, the second defendant, to have removed from the file in this matter an affidavit by the first plaintiff, Mr Mbuzi, sworn on the 3rd of December 2007. The application is made on two grounds. Firstly, the affidavit contains evidence regarding communications made in the course of settlement negotiations and, therefore, subject to without prejudice privilege which has not been waived. The second ground is that the affidavit contains material which is scandalous or oppressive and should be removed under Rule 440. Service of the application on both plaintiffs has been established by an affidavit of William Frances Boyd sworn today, which I grant leave to file. It is apparent that Mrs Mbuzi was aware of this matter as she signed consent orders to adjourn this application last week for hearing today. This application is not one to which Rule 447 of the Uniform Civil Procedure Rules applies and therefore the complaint made as to that procedural issue is rejected. The rules do not prescribe when applications to rule on the inadmissibility of evidence or to strike-out material which is scandalous must be made. The case of Re Daintrey Ex Parte Holt (1893) 2 QB 116, to which I was referred by Mr Mbuzi, is not authority for the proposition that the question of admissibility of evidence should not be determined before the hearing of the claim. -- 2 of 6 -- 3 ORDER 1 10 20 30 40 50 60 It is not, in my view, necessary to delay dealing with this application until the hearing of the substantive claim by the plaintiffs against the defendants. I reject the argument that the application cannot or should not be determined now. I find that paragraphs 2 to 8 excluding paragraph 6 of the affidavit of Mr Mbuzi deal with matters which are subject to without prejudice privilege. That privilege extends to communications as well as to documents. The passage that Mr Mbuzi referred me to in the case of Mercantile Mutual Custodians Proprietary Limited v Village Nine Network Restaurants & Bars Pty Ltd (2001) 1 QdR 276 is not authority for the proposition that the privilege only attaches to documents. It is without doubt the privilege extends to oral communications. There can be no dispute that the material is subject to privilege. On the face of Mr Mbuzi's affidavit itself, the conversations took place in the context of an attempt to reach settlement of the dispute the subject of these proceedings. There is nothing to raise a question whether it was a genuine attempt to settle the action. Mr Mbuzi seeks to lead the evidence contained in his affidavit to establish, he says, that there is a pattern of misleading and deceptive conduct by the representatives for the defendants. Mr and Mrs Mbuzi's claims relate to complaints about the circumstances in which and the consequences of the -- 3 of 6 -- 4 ORDER 1 10 20 30 40 50 60 actions of the defendants in recovering a debt and repossessing a vehicle. The pattern of misleading and deceptive conduct alleged by Mr Mbuzi, therefore, appears to be in relation to the conduct of litigation on behalf of both the defendants in the Supreme and District Courts. As such, the affidavit is directed not to the matters in dispute arising from the Mbuzi's claims, but to the way in which the defences to those claims have been undertaken. So it goes to the conduct of the representatives, not to the matters that are the subject of the litigation. It is clear that Mr Mbuzi has a dim view of the conduct of a number of lawyers involved in these proceedings. His purpose in filing the affidavit was, he said, to demonstrate to the defendants that they "should not use deception to try to coerce him into settling these proceedings". The proceedings before this Court do not depend on any determination as to the conduct of the solicitor who was the subject of this affidavit. The proper forum for any complaint of professional conduct is the Litigation Services Commission. Mr Mbuzi has exercised his rights in that forum and this Court has no function in considering Mr Mbuzi's complaint, in reviewing material placed before the Commission, or in reviewing any decision there made. -- 4 of 6 -- 5 ORDER 1 10 20 30 40 50 60 It is entirely inappropriate for the Court to allow this forum to be used to maintain these allegations. Firstly, they are allegations which are irrelevant to the proceedings before it. Secondly, they are allegations in relation to which it has no jurisdiction or function. Thirdly, the allegations have already been investigated and determined by the Tribunal specifically constituted to deal with such matters. The allegations against the former solicitor of the second defendant in paragraphs 8, 10 and 11 of Mr Mbuzi's affidavit are scandalous in the sense that they are irrelevant to any issue in these proceedings, they are opinions not evidence, and are an attack on a person who is not a party to the proceedings. I find that the grounds for removal of the affidavit from the file are made out and I grant the order sought. ... HER HONOUR: I am satisfied the costs on this application are discrete in the sense that the merits of the costs argument cannot be affected by the outcome of the substantive case. ... HER HONOUR: So, the order will be in terms of the draft except that I will delete "indemnity" and insert instead the word "standard" in paragraph 2. -- 5 of 6 -- 6 ORDER 1 10 20 30 40 50 60 ----- -- 6 of 6 --