Mbuzi v Murray [2012] QSC 83

[2] This proceeding was commenced on 15 April 2010 as an application for judicial review against the Registrar of State Penalties Enforcement Registry (SPER). The application, as filed, showed the date for the directions hearing as 2 August 2010.

[3] By an interlocutory application also filed on 15 April 2010, Mr Mbuzi sought an interim injunction against the Registrar of SPER to restrain him from taking any step to suspend Mr Mbuzi's driving licence. On 1 April 2010 SPER had issued a notice of intention to suspend Mr Mbuzi's driver's licence on 16 April 2010 for failure to pay the fine of $300 imposed on 30 July 2009 for contravening a direction to move on 16 September 2005. Mr Mbuzi was also convicted on 30 July 2009 of the offence of committing a public nuisance that was committed on 16 September 2005 for which he was fine $500. At the time the proceeding was commenced, however, the Registrar had not issued any notice of intention to suspend Mr Mbuzi's driving licence in respect of that outstanding fine. An enforcement order requiring payment of the fine of $500 by 10 February 2010 had been issued by SPER on 12 January 2010. The Registrar had issued a notice of intention to suspend his driver's licence dated 9 April 2010 in respect of a conviction of Mr Mbuzi for failing to keep left of double continuous dividing lines (the dividing line offence) committed on 3 June 2005 for which he was fined $150.

[4] The matter was brought on urgently before Fryberg J on 16 April 2010 for the interim relief, with notice to the respondent. Fryberg J ordered that the application be amended by deleting the title of the respondent and inserting in lieu the name of the respondent, Paul Murray. Upon the respondent's undertaking to revoke the notice of intention to suspend driver's licence issued to Mr Mbuzi on 1 April 2010 (in relation to the fine of $300 for the contravening direction offence), the application was adjourned to 23 April 2010. Costs were reserved. In accordance with the undertaking given by the respondent, the respondent repealed the notice of intention to suspend driver's licence dated 1 April 2010.

[5] In relation to the two offences committed on 16 September 2005, Mr Mbuzi had appealed against his convictions unsuccessfully to the District Court, but had subsequently applied for leave to appeal to the Court of Appeal. That application was extant at the time the notice of intention to suspend driver's licence was issued in respect of the contravening direction offence. It is the usual practice of SPER not to issue such a notice while there is an outstanding appeal: cf s 54 State Penalties Enforcement Act 1999 (the Act). It was only after the commencement of this proceeding that SPER was informed about the application for leave to appeal to the Court of Appeal.

[6] In the same proceeding, on 22 April 2010 Mr Mbuzi filed an amended interlocutory application seeking an injunction restraining the respondent from suspending his driver's licence, a declaration that a notice of debt and a notice of intention to suspend driver's licence issued to Mr Mbuzi relating to the dividing line offence were invalid and damages in the amount of $10,000 against the respondent for defamatory publication about Mr Mbuzi. Mr Mbuzi also sought costs fixed at $2,509. Mr Mbuzi had filed a further affidavit in support of his application on 22 April 2010 which exhibited a fresh enforcement order issued on 16 April 2010 by SPER in relation to the contravening direction offence seeking payment of the fine of $300 by 17 May 2010. He also exhibited to his affidavit a statement of claim with the same proceeding number to support the claim for damages of $10,000 for defamation. (Although that statement of claim was an exhibit to Mr Mbuzi's affidavit, that did not give it effect as a statement of claim under the Uniform Civil Procedure Rules 1999 (UCPR)).

[7] At the adjourned hearing before Fryberg J on 23 April 2010, the respondent undertook to take no steps or further action in relation to the enforcement of the fines for the contravening direction offence and the public nuisance offence, until the determination of the relevant proceeding in the Court of Appeal. (The application for leave to appeal was subsequently dismissed by the Court of Appeal on 23 July 2010: Mbuzi v Hornby [2010] QCA 186.)

[8] The position was different, however, in relation to the dividing line offence. The enforcement notice described the offence as failing to keep left of double continuous dividing lines, whereas Mr Mbuzi claimed that he had not been convicted of any such offence and the notice of intention to suspend his driver's licence based on the dividing line offence was invalid. Mr Mbuzi contended that it was invalid because he was convicted of crossing a single line around an island and the description of the offence on the enforcement notice was a different offence to that the subject of the conviction.

[9] Although Mr Mbuzi had originally been charged with a double line offence, as a result of the evidence given at the hearing of the charge, the Magistrate amended the charge, so that Mr Mbuzi was convicted of crossing a single line around an island. SPER had used the form of the dividing line offence with which Mr Mbuzi was originally charged (rather than the form of the offence that was the subject of his conviction) in the notice of intention to suspend his driver's licence dated 9 April 2010. (This history is also set out in the Court of Appeal's decision that dismissed Mr Mbuzi's application for leave to appeal against the decision of the District Court Judge who dismissed his appeal against conviction for the dividing line offence: Mbuzi v Torcetti [2008] QCA 231 at [4]- [14].) Fryberg J therefore concluded that it was arguable that the notice of intention to suspend driver's licence dated 9 April 2010 was invalid, as it did not set out the description of the offence of which Mr Mbuzi was convicted and Mr Mbuzi was entitled to relief in relation to that notice (and to the enforcement orders on which it was based).

[10] On 23 April 2010 Fryberg J ordered the respondent to revoke the notice of intention to suspend driver's licence dated 9 April 2010 in respect of the dividing line offence and ordered that the respondent be restrained from taking any action in relation to the two enforcement orders issued to Mr Mbuzi for payment of the fine of $150 for the dividing line offence respectively on 9 November 2007 and on 11 June 2008. The formal order of the court included liberty to apply, but neither the formal order nor Fryberg J's reasons dealt with costs. Although the content of Fryberg J's reasons clearly indicates that the intention was to grant interlocutory relief until the final hearing of the judicial review application, the terms of Fryberg J's order as recited in his reasons for judgment and reflected in the order that was initialled by Fryberg J and then sealed by the court amounted to final relief in respect of the then extant notice of intention to suspend driver's licence for the dividing line offence and the two enforcement orders on which that could be based.

[11] Mr Mbuzi appeared in court on 2 August 2010 for the original directions hearing that was fixed in the initiating application for judicial review. There was no appearance on behalf of the respondent due no doubt to the terms of the order made by Fryberg J on 23 April 2010. On 2 August 2010 Mr Mbuzi applied for his costs of the application. That was refused by Atkinson J. I have not been provided with the ex tempore reasons given by Atkinson J on that day, but according to Mr Mbuzi, his application for costs was refused, because the respondent did not appear and it was not apparent that the respondent had been notified that Mr Mbuzi was seeking an order for costs against the respondent on that day.

[12] Mr Mbuzi filed another interlocutory application on 23 September 2011 in reliance on Fryberg J's order of 23 April 2010 seeking an order that the respondent pay his costs fixed at $2,509, an order that the respondent was in contempt of court, an order of rebuke against the respondent's legal representative (the Crown Solicitor), and fixed costs of $586. Mr Mbuzi filed an affidavit on 23 September 2011 in support of his application. That affidavit deals with Mr Mbuzi's complaints about his dealings with an employee of SPER and lawyers in the Crown Solicitor's office. He also exhibited to that affidavit the new enforcement order that had been issued by SPER on 23 June 2001 in relation to the dividing line offence that now correctly described the offence as "Cross continuous line/s beside painted island on 03-JUN-2005." The enforcement order required the sum of $150 to be paid by 22 July 2011. It may be that the issuing of this notice explains the timing of the application filed on 23 September 2011, but if it does, it is irrelevant to the current application which arises out of the judicial review application in relation to the notices that were current when the proceeding was commenced.

[13] I made directions on 27 September 2011 providing for the timetable for the respondent to file and serve any affidavits on which he proposed to rely and an outline of argument and for Mr Mbuzi to file and serve any further affidavits. The hearing of the application was adjourned to 17 November 2011 which was the same date that I was due to hear the application by the Crown Solicitor against Mr Mbuzi for orders under the Vexatious Proceedings Act 2005. That order made on 27 September 2011 was varied by Douglas J on 13 October 2011, as the respondent required additional time for complying with the timetable for the filing of material for which Mr Mbuzi would not give consent.

[14] Mr Mbuzi clarified during the hearing on 17 November 2011 that the only part of the application filed on 23 September 2011 that was being pursued by him was his application for costs in respect of his successful application before Fryberg J. Mr Mbuzi indicated that he was relying on the liberty to apply provision in the order of Fryberg J.

[15] Mr Mbuzi provided particulars of his calculation of the amount claimed for costs of $2,509:

Legal consultations on two occasions at agreed fee of $450 per consultation

[16] There was no further dissection of the amounts claimed for costs and no receipts or other verifying documents produced in order to support claims for each of the items claimed for costs.

[17] At the time of the hearing a sequestration order was in force against Mr Mbuzi's bankrupt estate. There were submissions made on whether he was entitled as a bankrupt to pursue a claim for costs or whether that was a claim that was vested in his trustees in bankruptcy. It is no longer necessary to resolve that issue, as while this decision was reserved, Mr Mbuzi was successful in appealing against the making of the sequestration order and the sequestration order was set aside: Mbuzi v Favell (No 2) [2012] FCA 311.

[18] In summary, Mr Mbuzi sought the costs order on the basis that costs should follow the event which was his success before Fryberg J. As Mr Mbuzi appears for himself, any order for costs on a standard basis in his favour would be limited to out of pocket expenses assessed as properly recoverable as disbursements on an assessment of standard costs.

[19] The respondent opposed the order for costs contending that as Fryberg J did not deal with costs on 23 April 2010, there is no basis for Mr Mbuzi to apply for those costs at this late stage. The respondent relied on the fact that to the extent the application related to the public nuisance and contravening direction offences, the dismissal of Mr Mbuzi's application for leave to appeal to the Court of Appeal in respect of those offences discharged the respondent's undertakings given on 23 April 2010. On that basis Mr Mbuzi was ultimately unsuccessful and the submission was made by the respondent that costs should follow the event and be ordered against him. It was submitted that there was no basis for making an order for costs in Mr Mbuzi's favour and to apply for such an order over one year after the disposition of the proceedings was vexatious.

Whether a costs order should be made in Mr Mbuzi's favour

[20] If Mr Mbuzi had not obtained relief from the court on 23 April 2010 in respect of the notice of intention to suspend his driver's licence dated 9 April 2010, the effect of that notice would have been to suspend his driver's licence automatically: s 105 of the Act. He succeeded on technical grounds in his argument about the validity of that notice (and the related enforcement orders) for the purpose of obtaining the orders set out in paragraphs 1 and 2 of the orders made by Fryberg J on 23 April 2010.

[21] It is arguable that the liberty to apply given by Fryberg J on 23 April 2010 related to the undertakings recited in the order and the orders made in paragraphs 1 and 2 of the order. On the basis that the judicial review application is in substance completed, as it related to notices and orders issued by SPER at the date the proceeding commenced which have now been overtaken by events, there is otherwise jurisdiction under r 685 of the UCPR for Mr Mbuzi to apply for a costs order that is just in the circumstances.

[22] To the extent that the judicial review application related to the notices issued by SPER in respect of the public nuisance and contravening direction offences, the respondent's undertakings preserved the status quo until Mr Mbuzi's application for leave to appeal to the Court of Appeal in relation to his convictions for those offences was dismissed. As Mr Mbuzi was ultimately unsuccessful in relation to those offences, I accept the respondent's submission that Mr Mbuzi should not be successful in obtaining a costs order for that part of his application.

[23] Although the respondent in submissions suggested that he should have a costs order against Mr Mbuzi in respect of the application before Fryberg J relating to the public nuisance and contravening direction offences, there was no application for costs made by the respondent against Mr Mbuzi. In any case, it is not appropriate to order costs in the respondent's favour when SPER had failed to comply with its usual practice of not issuing a notice to suspend a driver's licence based on an outstanding fine that was still the subject of an appeal.

[24] The position is different, however, in relation to the notice that was issued in respect of the dividing line offence. An error was made at SPER in the terms in which the details of that offence were recorded and that error was perpetuated in all the notices until Fryberg J decided that the subject notice was arguably invalid. On that basis, the respondent could never succeed in relying on the subject notice or the enforcement orders on which it was based.

[25] Mr Mbuzi should therefore obtain a costs order, but limited to those costs that relate to the relief he obtained in paragraphs 1 and 2 of the order made on 23 April 2010. Those out of pocket expenses may be modest, but that is not a reason not to make the order in favour of Mr Mbuzi. It is not appropriate to fix the costs in the light of the limitation that is imposed on the costs that can be recovered and the lack of supporting documents for the amounts claimed.

[26] My inclination is not to order any costs for the application for the costs order. That application was heard at the same time as another application involving the Crown Solicitor against Mr Mbuzi and the sum that Mr Mbuzi is likely to recover under the costs order will be modest. I will give the parties an opportunity, however, to make submissions on the costs of the application for the costs order.

[27] The order should be made in the following terms:

Subject to the limitation that the costs relate to the relief obtained in paragraphs 1 and 2 of the order made on 23 April 2010, the respondent must pay the applicant's costs of the application filed on 15 April 2010 to and including the hearing on 23 April 2010, including the costs reserved on 16 April 2010, to be assessed.