Consideration
176 The first issue for consideration is whether the university has standing to bring this cross-claim under s 37AO(3).
177 Clearly Griffith University does not fall into the categories described in s 37AO(3)(a) and (b). However I am satisfied that, at the very least, Griffith University has standing to commence this cross-claim because it is currently being sued by Mr Mbuzi, and Mr Mbuzi has already forecast future litigation against the university and persons associated with it. As a result Griffith University has sufficient interest in the matter within the meaning of s 37AO(3)(d).
178 Although I have found that Mr Mbuzi's claims in his amended originating application lacked merit, I am not prepared to find that the proceeding was vexatious because it was instituted or pursued "without reasonable ground" within the meaning of s 37AO(3)(c). While Mr Mbuzi's Constitutional arguments were, in my view, doomed to fail from the outset, his contentions concerning contract and ACL proceedings required some consideration before they were dismissed. In this respect I consider this proceeding distinguishable from, for example, that recently considered by Mortimer J in Garrett v Make Wine Pty Ltd [2014] FCA 1258, where the applicant continued to relitigate issues addressed in previous litigation.
179 The second question is whether Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals. Section 37AO(6) permits the Court to consider not only proceedings in other Courts or Tribunal and orders made, but also the person's overall conduct in those proceedings. To that extent, it is appropriate for me to have regard to the proceedings previously instituted by Mr Mbuzi in the Queensland Courts (namely the Queensland Civil and Administrative Tribunal, the Small Claims Tribunal, the Magistrates Court, the District Court of Queensland, the Supreme Court of Queensland and the Court of Appeal of Queensland) as well as the High Court of Australia.
180 In Cooper v Mbuzi, Mullins J made orders pursuant to the Vexatious Proceedings Act declaring Mr Mbuzi to be a vexatious litigant in light of the myriad of proceedings commenced by Mr Mbuzi in the Queensland Courts. I have already examined her Honour's judgment in that matter.
181 In response to the university's cross-claim Mr Mbuzi submitted, inter alia, that Mullins J - presumably in her Honour's judgment in Cooper v Mbuzi - "rejected all but one of the cases said to be 'vexatious proceedings'". This is not correct. Mullins J found that Mr Mbuzi's proceedings in the Supreme Court and the special leave application to the High Court arising from the small claim before Magistrate Hall were vexatious and oppressive (at [75]). Similarly her Honour found that Mr Mbuzi's judicial review proceedings and associated litigation against the University of Queensland were vexatious (at [76]) and proceeding BS5009 of 2011 against Griffith University was vexatious. Indeed at [80] her Honour observed:
My conclusions as to which of the numerous proceedings brought by Mr Mbuzi are vexatious satisfy the requirement under the Act that such proceedings must have been brought frequently.
182 The only proceedings instituted by Mr Mbuzi in the Queensland courts examined by her Honour which her Honour did not find oppressive related to notices of intention to suspend Mr Mbuzi's driver's licence for unpaid fines: Cooper v Mbuzi at [77].
183 Earlier in this judgment I summarised the proceedings brought by Mr Mbuzi in the Queensland State Courts and relevant findings of Judges in those Courts. In relation to four tranches of litigation in the Queensland Courts including appeals for special leave to the High Court (namely the Favell litigation, the Hall litigation, the University of Queensland litigation and the Griffith University litigation), it appears that Mr Mbuzi has commenced approximately 20 separate proceedings in the space of eight years. As I have also observed, in many of those decisions the Judge hearing the matter commented adversely on Mr Mbuzi and the vexatious nature of his claim, culminating in the decision of Mullins J in Cooper v Mbuzi. I am satisfied that Mr Mbuzi has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals within the meaning of s 37AO(1)(a).
184 Finally, section 37AO(2) grants the Court a discretion to make orders of the type sought by Griffith University in their cross-claim. Griffith University has sought orders pursuant to s 37AO(2)(b).
185 Proscribing a person from commencing litigation is a very serious matter. An order to this effect should be approached by the Court with the utmost caution. However so far as concerns potential actions by Mr Mbuzi against Griffith University and persons associated with the university I consider it is appropriate to make orders pursuant to s 37AO(2)(b). I have formed this view for the following reasons.
186 First, as the university contends, Mr Mbuzi clearly has an appetite for litigation. He appears to take a very broad - and, it may be said, frequently unreasonable - view of what constitute "his rights", which he is prepared to defend to the ultimate extent. He is prepared to commence Court proceedings with very little provocation, and, as is clear from perusal of correspondence before the Court, appears to relish doing so. That this is so is further demonstrated by:
the frequency of litigation initiated by him over the last few years;
the fact that Mr Mbuzi in correspondence with the university has compared his "wins" in litigation with those "wins" of the university, almost like balancing a ledger;
the relatively minor matters which Mr Mbuzi has insisted proceed to the highest appellate Courts in the land (including a dispute over an insurance claim for $3,276 which Mr Mbuzi attempted to press as far as the Queensland Court of Appeal); and
the regularity in his correspondence in which Mr Mbuzi either adverts to or threatens litigation as a means of enforcing "his rights".
187 To illustrate this last point I note, appended to the supplementary submissions of the university, a table summarising correspondence received by university staff from Mr Mbuzi during the course of these proceedings from 22 July 2013 until 3 March 2014. There are 37 separate items of correspondence to a wide variety of persons in which Mr Mbuzi either references Court action or threatens Court action to enforce compliance with his demands.
188 That many of the problems Mr Mbuzi has experienced, inspiring his litigation, appear self-inflicted (and in this respect I particularly note the current proceedings, and apparently the Favell litigation and the University of Queensland litigation) do not deter him in the slightest. Rather, Mr Mbuzi seems to consider that he is vindicated in respect of his rights by commencing litigation.
189 Mr Mbuzi has no hesitation in bringing multiple applications in respect of the same litigation, and in particular applications against multiple personal respondents associated with decisions of institutions. A very real question arises whether Mr Mbuzi does so to attempt to intimidate those individuals in respect of decisions of the institution with which they are associated. In any event, those individuals are subjected to the trauma and potential expense of litigation which, as history has demonstrated, in the case of proceedings instituted by Mr Mbuzi is frequently unmeritorious.
190 Significantly, Mr Mbuzi already has a history of commencing unmeritorious claims against Griffith University, both in this Court - that is, this proceeding - and in the Supreme Court of Queensland. I consider it very likely, now that he has been unsuccessful in this proceeding, that unless the Court grants the orders sought by Griffith University, Mr Mbuzi will commence fresh proceedings closely related to the events I have documented in this judgment against either the university or staff personally. I note that Mr Mbuzi has already made threats of personal litigation in emails to Griffith University staff. I infer from this correspondence that Mr Mbuzi is "warming up" in respect of litigation against Griffith University and its staff, and because he is precluded from commencing litigation in the Supreme Court he will return to this Court with more litigation, similarly to what was seen by the State Courts in the tranches of litigation commenced there. Those tranches of litigation demonstrate that Mr Mbuzi will continue to litigate his grievances - however unmeritorious - until all avenues of appeal are exhausted.
191 I am concerned about the impact, not only on the resources of Griffith University and its staff, but on resources of this Court should Mr Mbuzi embark upon an operation of commencing further unmeritorious actions. I note that Mr Mbuzi complained in this hearing about the volume of material filed by Griffith University and the length of their submissions. The reality of litigation is that claims of the wide variety and potential complexity of those pressed by Mr Mbuzi require a considerable amount of work by respondents to meet, even if that work is to discredit those claims. Where respondents choose to engage legal representatives, as they are entitled to do and as Griffith University has done here, that considerable amount of work can entail extensive financial and staff resources.
192 So far as the resources of the Court is concerned, this claim has already required a two day hearing, and a significant amount of judicial time to examine what emerge, on proper investigation, to be completely baseless claims by Mr Mbuzi.
193 Mr Mbuzi has been given ample opportunity to ventilate, both in this Court and the State Courts, his grievances against Griffith University. His emailed threats to commence fresh proceedings against Professor O'Connor, Professor Chu, Professor Docherty, Associate Professor Macleod and Ms Mcgrath relate to proceedings already instituted by him, and which were dismissed. While in correspondence Mr Mbuzi appears to be contemplating the prospect of defamation proceedings against a number of staff I note that:
Such proceedings would be clearly related to, and would involve issues raised, in this proceeding which has been dismissed.
Mr Mbuzi did not press any defamation claims in this proceeding, which would have enabled the Court to deal with those matters and save future Court time and resources, as well as that of the respondents.
To my knowledge, Mr Mbuzi has not yet filed defamation proceedings against any individuals associated with Griffith University in any Registry of this Court.
In any event, there is no evidence before me of anything but the possibility of Mr Mbuzi commencing litigation in the terms he appears to have threatened.
194 Mr Mbuzi's conduct satisfies the requirements of s 37AO(1)(a) of the Federal Court Act. In the circumstances I consider it appropriate to make the orders sought by Griffith University pursuant to s 37AO(2)(b) in respect of future litigation by Mr Mbuzi against the university and persons associated with the university. It is usual that such orders be made preventing future litigation "without the leave of the Court", and I consider such a qualification appropriate in this case. As I have dismissed Mr Mbuzi's claim on its merits, it is unnecessary for me to make an order dismissing this particular claim pursuant to s 37AO(2)(a).