/vɛkˈseɪʃəs/ (say vek'sayshuhs)

adjective 1.  causing vexation; vexing; annoying.

2. Law (of legal actions) instituted without sufficient grounds, and serving only to cause annoyance.[1]

The original vexatious proceedings order

On 24 April 2012, on application by the Crown Solicitor, the Supreme Court made vexatious proceedings orders under the Vexatious Proceedings Act 2005 (VPA), s 6(2)(b) prohibiting Mr Josiyas Zifanana Mbuzi from instituting proceedings in Queensland.[2]

This is a comprehensive and restrictive prohibition. The term ‘proceeding’ is broadly defined in the schedule of the VPA as follows:

proceeding includes—

(a) any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal; and

(b) any proceeding, including any interlocutory proceeding, taken in connection with or incidental to a proceeding pending before a court or tribunal; and

(c)  any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.

Fraser JA in Conde v Guilfoyle [2010] QCA 109 at [25] said:

The freedom of access to the courts by citizens has been regarded as a fundamental right. The stringent conditions upon the court’s power to make vexatious proceedings orders expressed in s 6(1)(a) reflect the importance attributed by the legislature to that right.

The corollary of that right is described by Fraser JA at [25] and [26]:

…erosion of freedom of access to the courts has been found to be demanded by the seriously adverse effects upon the community resulting from vexatious litigation.

Opponents of litigants who bring vexatious proceedings may also be put to considerable expense, including costs incurred in responding to appeals against vexatious proceeding orders. This may prove to be quite oppressive, especially because vexatious litigants are often unable to meet costs orders made against them, having squandered what assets they possessed in the pursuit of hopeless cases.

The harshness of the restrictions imposed by vexatious proceedings orders are ameliorated somewhat by the right in s 7 of the VPA to have vexatious proceedings orders varied or set aside, and by the right under s 11 of the VPA for a person subject to vexatious proceedings orders to make application for leave to institute proceedings.

The facts

On 27 September 2016 Mr Mbuzi’s Jaguar sedan was detected by a speed camera on Hale Street, Brisbane allegedly travelling at 70 km/h in a 60 km/h zone.

Mr Mbuzi elected to have the matter dealt with by the Magistrates Court. He appeared before the Magistrates Court in Brisbane on 7 September 2017.

Mr Mbuzi admitted that the speed limit on Hale Street was 60 km/h. He initially challenged the existence of speed restriction signs but abandoned that challenge in the course of the hearing. He challenged the accuracy of the photographic detection device. The prosecution had to call the engineer from Melbourne who had calibrated the machine to attest to its accuracy. The magistrate accepted the expert’s evidence. Mr Mbuzi argued that the photograph did not show that he personally was the driver. But he was unable to provide the necessary information to establish that, as owner of the vehicle, he was not liable for the fine.[3] Consequently he was convicted.

The fine under the original infringement notice was $162.00. Upon conviction Mr Mbuzi argued that the court should impose a penalty not exceeding that amount. However, the magistrate pointed out that the amount sought under the infringement notice was a discounted amount predicated upon the fine being paid, the prosecution not being put to proof, court time not taken up, and police not taken off the road. The magistrate asked rhetorically:

Would not someone who had paid the ticket amount feel justifiably aggrieved”, the magistrate said, “if they got no benefit for it, where if someone who puts the prosecution to proof … comes to court, argues their case fully, [and] winds up with the same penalty as the person who paid the ticket?

Mr Mbuzi was fined $300 with $92.90 for the costs of the summons. In addition, because of the challenge insisted upon by Mr Mbuzi, the prosecution sought the costs of having to call the speed camera calibration expert from Melbourne. The magistrate ordered that Mbuzi also pay the sum of $2965.35.  The total amount now payable by Mr Mbuzi was $3,358.25.

The application

On 6 October 2017 Mr Mbuzi made an ex parte application to the Supreme Court under s 11 of the VPA seeking leave to institute an appeal to the District Court[4] against his conviction in the Magistrates Court (BS10394/17). On 13 October 2017 his ex parte application came before the Court which ordered, under s 13(1) of the VPA, that Mr Mbuzi serve the Commissioner of the Queensland Police Service (QPS), the Crown Solicitor and the Attorney-General with his proposed appeal documents and affidavit material.

The Crown Solicitor, instructed by the Commissioner of the QPS and acting on his own behalf, brought the proceeding before the Court (Bowskill J) for hearing on 7 June 2018.

The order refusing leave to appeal

The Court dismissed Mr Mbuzi’s application for leave to institute an appeal against his conviction.  Her Honour delivered ex tempore reasons. Relying on s 12 of the VPA, her Honour dismissed the application on the grounds that:

  • Mr Mbuzi’s application for leave did not conform to some of the requirements of s 11 of the VPA, and
  • the proposed appeal did not disclose reasonable grounds for appeal, and therefore was itself vexatious.

Her Honour ordered that Mr Mbuzi pay the respondents’ costs. Those costs have not yet been precisely quantified, but the total amount now payable by Mr Mbuzi is likely to be about a hundred times the amount of the original fine.

[1] Macquarie Dictionary online, accessed 7 June 2018.
[2] Cooper v Mbuzi [2012] QSC 105.
[3] Transport Operations (Road Use Management) Act 1995, s 114 makes the registered operator of a vehicle driven by another person responsible for a speeding offence committed by the driver, but provides a defence if the registered operator establishes that he or she was not the driver and has given police the driver’s details.  In Attorney-General (Qld) v Morris (2015) 71 MVR 290 the Court of Appeal dismissed a constitutional challenge to s 114.
[4] Justices Act 1886, s 222.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 11 June 2018

Author: Tony Keyes