Kowalski v Bourne

[2012] SASC 6

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

KOWALSKI v BOURNE

[2012] SASC 6

Judgment of The Honourable Justice Kourakis (ex tempore)

13 January 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against an order of a magistrate dismissing the appellant’s criminal action – magistrate found that the appellant’s action was agitating historic matters of a civil nature under the guise of a criminal prosecution – whether the criminal proceedings should have been dismissed.

Held – appeal allowed to the limited extent of changing the form of order substituted to impose an order staying the criminal information as an abuse of process substituted for order of Magistrate dismissing the action – appeal otherwise dismissed.

KOWALSKI v BOURNE
[2012] SASC 6

Magistrates Appeal:  Criminal

1. KOURAKIS J (ex tempore):          In September 2011 the appellant, Mr Kowalski, laid an information in the Magistrates Court comprising 11 counts alleging that the respondent, Mr Bourne, had committed 11 contraventions of the Criminal Law Consolidation Act 1935 (the Act).  The offences have as their foundation the alleged unlawful receipt by Mr Bourne of a sum of about $6,684.00 from Mr Kowalski, purportedly on account of legal fees earned in representing Mr Kowalski in a claim related to an injury suffered at work.  The offences allege various forms of theft, blackmail, receiving and dishonest obtaining of that sum of money.

2. The information came before a magistrate.  On what I think was the first occasion on which the information was called on in the Magistrates Court, the Magistrate dismissed it.  The only reasons for dismissal given by the Magistrate were:

   “I have read this information and it is clear to me that Mr Kowalski is agitating historic matters of a civil nature under the guise of a criminal prosecution. They are without merit.”

3. In my view those reasons were inadequate. They did not expressly identify the legal ground on which the proceedings were dismissed and gave no indication of the Magistrate’s reasons for taking that precipitous step.

4. There has therefore been an error of law by reason of the inadequacy of the Magistrate’s reasons.  Accordingly, I proceed to consider for myself whether the proceedings should have been dismissed.

5. In my view the concern of the Magistrate appears to have been that the proceedings were an abuse of process.  I have read and considered the information and the material attached to it.  The material on its face raises a concern that the information is an abuse of process. The respondent is prepared to proceed on the basis that that was the ground on which the Magistrate dismissed the information and submits that I should reach the same conclusion.

6. I should say immediately that it is doubtful that the Magistrate was empowered to dismiss the proceedings on that ground.  The respondent accepts that the proper order with respect to criminal proceedings which are an abuse of process is to stay the proceedings until further order. I will accept that proposition for the purposes of this appeal.  If I conclude that the information is an abuse of process then that is the order which I will make, even though, I can see that it is at least arguable that a dismissal, otherwise than on the merits, might also be available with respect to criminal prosecutions which are an abuse of process.

7. Turning to the merits of the question whether the information is an abuse of process, I have already mentioned that the charges it contains are founded on the payment to Mr Bourne of the sum of about $6,684.00 dollars.

8. It is common ground on this appeal that a consent judgment for that amount was entered in the Magistrates Court in proceedings brought by Mr Bourne, as plaintiff, against Mr Kowalski, as defendant, seeking that sum by way of legal fees. It is also common ground that Mr Kowalski later brought an application in the Magistrates Court to have that judgment set aside, but was unsuccessful.  I understand from Mr Kowalski’s submissions that the application was made on the grounds that the judgment was obtained by fraud.

9. The existence of that judgment is, in my view, an insuperable obstacle to the success of the information filed by Mr Kowalski.  It is not open in criminal proceedings to find that an offence has been committed by the receipt of money payable under a judgment which has not been set aside. For that reason alone the information is bound to fail and should be stayed as an abuse of process.

10. There are, in my view, further reasons why it should be stayed. The material accompanying the information in itself shows that there are close to no prospects of success on the offences charged.  Various elements which must be proved to establish those offences cannot be shown given the attached material which, in effect, discloses that the money was paid in accordance with a consent judgment. For that reason too, the information is an abuse of process.

11. Mr Kowalski is a lay litigant with a very limited understanding of the law. It appears from the way in which the information has been drawn and from the accompanying material, that if the information were to proceed it would take a tortuous path with much of the Magistrates Court’s time and resources occupied and devoted to matters which were simply irrelevant. That too, coupled with the lack of any real prospect of success is a reason to stay the information.

12. Next I observe that the offences alleged are now about a decade old.

13. Finally, it appears from the history of litigation of which I have been informed, and the content of Mr Kowalski’s submissions, that Mr Kowalski bears a great personal animosity towards Mr Bourne and is anxious to bring proceedings to harass him in any jurisdiction in which it is possible to do so.

14. For all of those reasons I conclude that the information is an abuse of process.  I will allow the appeal for the limited purpose of changing the form of order from one dismissing the information to an order staying it until further order. I otherwise dismiss the appeal.

15. The appeal is dismissed with no order as to costs.