Kowalski v Bourne
[2010] FMCA 676
•24 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWALSKI v BOURNE | [2010] FMCA 676 |
| TRADE PRACTICES – Application to amend application by applicant – application refused. |
| Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (SA) |
| Applicant: | KAZIMIR KOWALSKI |
| Respondent: | TIM BOURNE |
| File Number: | ADG 95 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 24 August 2010 |
| Date of Last Submission: | 24 August 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 24 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Camatta |
| Solicitors for the Respondent: | Camatta Lempens Pty Ltd Lawyers |
ORDERS
The Application in a Case filed on 4 August 2010 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 95 of 2010
| KAZIMIR KOWALSKI |
Applicant
And
| TIM BOURNE |
Respondent
REASONS FOR JUDGMENT
At the outset of this matter, there has been brought to my attention that there is an application in a case being filed which is returnable today. In that application, Mr Kowalski seeks orders that would permit his amendment to his application so as to join to these proceedings institutions which provide or broker insurance to legal practitioners in this State. The application is supported by an affidavit filed on 4 August, and Mr Kowalski has made some submissions in support of the application today. This occurs as we are about to embark upon the hearing of an amended application that Mr Kowalski has brought against Mr Bourne.
At this stage, and having read the affidavit filed in support of the application before it was amended, my understanding of the claim against Mr Bourne is that it is alleged that on 26 April when he sent a facsimile to Mr Kowalski in answer to a letter Mr Kowalski had sent him on the previous day. The facsimile, which is referred to in paragraph 2.16 of the affidavit filed in support of the application, indicates Mr Bourne's denial of an allegation of fraud, some observations about the allegation and a request for a retraction of what is described as the basis of this allegation of fraud. That event of
26 April is the event, I am assuming, that finds its way into the application as being said to constitute the breaches of the Trade Practices Act that are referred to in the amended application.
That is as much as I know at this stage about the application Mr Kowalski brings. It was originally listed today for an application to summary determine which was subsequently not proceeded with, so that the matter could proceed on its merits today.
There will be circumstances, I can imagine, where it will be appropriate to join as parties to proceedings insurers to whom respondent's rights are subrogated, in respect of certain causes of actions. I can imagine it being appropriate to consider such a course of action, for example, in the case of an impecunious respondent who just wilfully refused to do whatever was required to obtain indemnity in respect of conduct that is alleged, but that is not contended here.
There is no suggestion that Mr Bourne would not be able to satisfy any judgment Mr Kowalski might obtain as a result of these proceedings. None of those issues arise, and so it was only natural in those circumstances that I would ask Mr Kowalski to identify for me the relevant evidence that would be elicited, or the relevant submissions that would be made, if these insurers were joined as parties to the proceedings. Doing the best I can to understand what Mr Kowalski put to me in relation to that, I think he was suggesting that he could establish that Mr Bourne had not made a claim upon his insurers and that in the event of his being able to establish that, he wanted me to draw an inference that Mr Bourne had behaved in the deceptive way, or in a fraudulent way in which it is alleged he behaved on 26 April.
In other words, I am asked to draw an inference from his unwillingness to ask for indemnity under a policy of insurance an acknowledgement of his guilt or an acknowledgement of his commission of the conduct said to breach the Trade Practices Act on 26 April 2010. Mr Kowalski has not established any reasonable basis for that inference to be drawn. It is not an inference that in any way, in my view, can be drawn from any circumstance relating to whether or not Mr Bourne has or has not made an application for indemnity under a policy of insurance. No other ground was advanced as to why the joinder was required in these circumstances, and accordingly the application in the case filed on 4 August 2010 will be dismissed.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 1 September 2010
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