Mbuzi v Favell

SUPREME COURT OF QUEENSLAND

CITATION: Mbuzi v Favell [2012] QCA 17

PARTIES: JOSIYAS MBUZI (applicant) v PAUL FAVELL (respondent)

FILE NO/S: Appeal No 7520 of 2011 / DC No 1021 of 2005

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time/General Civil Appeal

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 23 February 2012

DELIVERED AT: Brisbane

HEARING DATE: 23 February 2012

JUDGES: Fraser and White JJA, and Daubney J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **1.**Leave granted to read and file affidavit of J Mbuzi. / **2.**Application for an extension of time to appeal is refused. / **3.**Applicant to pay the respondent's costs on the indemnity basis.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant filed for extension of time within which to appeal and for leave to appeal against judgment for $15,000 damages for defamation, including interests and costs – where proposed appeal five and a half years out of time – where applicant's misconstruction of respondent's evidence does not supply a reasonable explanation for applicant's extraordinary delay – where the applicant argued that there was merit on the grounds of appeal – whether an extension of time within which to appeal should be granted / APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent applied for costs on the indemnity basis – where the applicant argued that costs on the indemnity basis was not appropriate because a matter of considerable importance was brought by the applicant – where there was extraordinary delay by the applicant in bringing the application – where no merit in application – where applicant used application as vehicle to make irrelevant, defamatory allegations against the respondent – whether costs should be awarded on the indemnity basis

COUNSEL: The applicant appeared on his own behalf / R J Anderson for the respondent

SOLICITORS: The applicant appeared on his own behalf / No appearance for the respondent

FRASER JA: On 24 August 2011, the applicant filed an application for an extension of time within which to appeal and for leave to appeal against a judgment for $15,000 as damages for defamation, with interest and costs, given in the District Court on 18 November 2005.

The proposed appeal is therefore more than five and a half years out of time. See section 118 of the District Court of Queensland Act 1967 (Qld) and rule 748 of the UCPR.

The applicant argued in writing and orally today that his lengthy delay in applying for leave to appeal was explicable by evidence the respondent gave at the trial that he was not interested in getting money from the applicant but simply wanted to clear his name.

That argument fundamentally misconstrued the respondent's evidence. When the respondent was asked in evidence-in-chief what he thought he might do if he were to receive an appropriately worded apology and retraction from the applicant, he said, "Well, I am not sure about that. I would have to see the wording of it. We have got to the stage where this has been compounded and it really is upsetting that - and the way the conduct has proceeded - I'd have to be sure that I could point to that apology and retraction as a vindication of my reputation. So I would want it to be published far and wide before I considered anything further."

The other most relevant passage of evidence was the following exchange during the applicant's cross-examination of the respondent at the trial. The applicant said, "Yes. So you did not choose to come to Court and exonerate yourself? Instead you decided to take a defamation action to win money. Is that what you are saying?" The respondent answered, "No. I'm taking the action to vindicate my representation and publish to the world that your allegations are absolutely baseless."

In addition, the applicant relied upon a paragraph in an affidavit he swore, which was filed on 24 August 2011. The applicant deposed in that affidavit that after an earlier default judgment in the respondent's favour was set aside, the respondent requested an agreement from the applicant so as not to continue with the respondent's claim in Court, and the applicant agreed.

Perhaps more relevantly, the applicant deposed that in the course of the defamation proceedings, the respondent told the Court that he - that is, the respondent - was not interested in getting any money from me but that he simply wanted "to clear my name." He had also said that he did not want to have his name on Court lists indicating that he had a matter in Court. That latter passage appears to be a purported summary of the evidence given by the respondent at the trial. In any event, the Court relies upon the record of the proceedings at trial.

The evidence given by the respondent at the trial did not convey that he would not seek to enforce a judgment for damages. The recovery of substantial damages awarded by a Court is one way in which a defamed plaintiff may seek to vindicate his or her reputation. The respondent claimed damages in his initiating process and he did not abandon or qualify that claim in his evidence at trial.

Once judgment was awarded after the trial in the respondent's favour, he was free to seek to enforce the judgment in accordance with the rules at a time of his choosing. The applicant's misconstruction of the respondent's evidence does not supply a reasonable explanation for the applicant's extraordinary delay in applying for leave to appeal.

As to the merits of the proposed appeal, the background to the litigation and the trial Judge's reasons for rejecting the applicant's defences was summarised in Mbuzi v Favell [2007] QCA 393 at paragraphs 8 to 17. It is unnecessary to repeat that summary here.

It is apparent that the resolution of the respondent's claim turned upon the application of relevant provisions of the Defamation Act 1889 (Qld) to the very unusual facts of the case.

Contrary to what I understood to be the applicant's main argument in support of his application, the judgment did not ignore or erode the protection of absolute privilege afforded to persons who published defamatory matter in the course of proceedings in the Courts. Rather, the trial Judge concluded, after a careful analysis, that the applicant's defamatory imputations were not published "in the course of" his litigation with his neighbours.

That conclusion was informed by the perceived absence of any logical connection between the procedural and substantive issues in the applicant's litigation with his neighbours and his extravagant defamatory allegations against the respondent. There is, thus, no important legal principle involved in the proposed appeal.

Having regard also to the lengthy passage of time since the judgment and the applicant's apparent familiarity in 2005 with the right to appeal or, more strictly, to seek leave to appeal, I would not exercise the discretion to extend time or grant leave to appeal.

I would reach that conclusion regardless of the suggestion that there is merit in the appeal but a further reason for refusing the application is that I would reject the applicant's argument that the trial Judge was mistaken in holding that the defamatory publication was not protected by absolute privilege.

In the course of submissions, the applicant also argued that there was a significant factual mistake made by the trial Judge. It is sufficient to say that it was impossible to understand the submission. It seemed to be based upon the proposition that an answer given by the respondent in evidence that he could not recall the extent of his involvement in the earlier litigation must be presumed to have been false and deliberately so. Plainly, there is no substance in that proposition.

The application should be refused, with costs.

In my opinion, it is appropriate to order that:

(1) the application is refused;

(2) the applicant pay the respondent's costs of, and incidental to, the application.

I would also hear from the parties about the basis of assessment.

WHITE JA: I agree with the orders proposed by the presiding Judge and I have nothing further to add to his Honour's reasons with which I agree.

DAUBNEY J: I concur.

...

FRASER JA: The applicant argues that he ought not to be required to pay the successful respondent's costs of this application. Costs ordinarily do follow the event and, in my opinion, there is no reason why they ought not to do so in this case.

The respondent has applied for the costs to be assessed on the indemnity basis. The applicant submitted that this was not appropriate. I summarised his submissions and I understood him to endorse, as a brief summary of his submissions, that this was a matter of considerable importance which was brought by the applicant in a bona fide attempt to have the judgment of the Court.

I accept the respondent's submissions that indemnity costs should be ordered for a number of reasons. They are: the applicant's extraordinary delay in applying; his unsustainable attempt to justify the delay by a misreading of the evidence given by the respondent at trial; the fact that he had brought two separate proceedings in relation to the judgment against him before this one, namely, the decision in 2007 which I mentioned when giving my initial reasons, and a case called Mbuzi v The Attorney-General of Queensland and Favell [2006] QCA 381; the fact that there was no merit in the application; and, finally, the fact that the applicant used the application as a vehicle to make irrelevant, defamatory allegations against the respondent, including but not limited to those which had resulted in the judgment which should have put the defamatory allegations to rest.

I would order the applicant to pay the respondent's costs of the application on the indemnity basis.

WHITE JA: I agree.

DAUBNEY J: For the reasons given earlier by the presiding Judge, this application was so bereft of merit that no litigant, properly advised, could or should have brought, let alone pursued, this application. This is an appropriate case in which indemnity costs should be ordered. I therefore agree with the orders proposed by the presiding Judge.

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