FEDERAL COURT OF AUSTRALIA
Kowalski v Bourne [2011] FCA 269
Citation: Kowalski v Bourne [2011] FCA 269 Appeal from: Kowalski v Bourne [2010] FMCA 676
Kowalski v Bourne (No 2) [2010] FMCA 677
Kowalski v Bourne (No 3) [2010] FMCA 678
Kowalski v Bourne (No 4) [2010] FMCA 679Parties: KAZIMIR KOWALSKI v TIM BOURNE File number: SAD 117 of 2010 Judge: LOGAN J Date of judgment: 28 March 2011 Catchwords: HIGH COURT AND FEDERAL COURT – actual bias – reasonable apprehension of bias by reason of prejudgement – where Federal Magistrate had delivered a number of judgments adverse to the appellant – no actual or reasonable apprehension of bias – Federal Magistrate fulfilling necessary judicial functions
PRACTICE AND PROCEDURE – summary judgment – where appellant alleged that case was summarily dismissed – where appellant abandoned his case during cross-examination – whether applicant suffered incapacity to render him incapable of conducting a proceeding – whether Federal Magistrate obliged to adjourn proceeding instead of giving judgment – Federal Magistrate not obliged to adjourn proceeding under Federal Magistrates Court Rules 2001 (Cth) – applicant mentally capable
Legislation: Constitution ss 71, 77(i)
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Magistrates Act 1999 (Cth) ss 15, 17A
Trade Practices Act 1974 (Cth) ss 6, 52, 53
Federal Court Rules O 18 r 2
Federal Magistrates Court Rules 2001 (Cth) r 11.08(1), r 11.11, r 3.03B(1), r 13.03B(2), r 13.03B(4), r 13.03C, r 13.03C(1), r 13.03C(2), r 15.31
Fair Trading Act 1987 (SA) ss 56, 57, 58
Legal Practitioners Act 1981 (SA) ss 41, 42Cases cited: British American Tobacco Australia Services Ltd v Laurie (2011) 85 ALJR 348 cited
British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 cited
Colgate-Palmolive Company and Another v Cussons Pty Ltd (1993) 46 FCR 225 applied
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
Hill v Lang [2010] FCA 629 considered
Kowalski v Bourne [2010] FMCA 676 cited
Kowalski v Bourne (No 2) [2010] FMCA 677 cited
Kowalski v Bourne (No 3) [2010] FMCA 678 cited
Kowalski v Bourne (No 4) [2010] FMCA 679 considered
Livesey v NSW Bar Association (1983) 151 CLR 288 cited
Martin v Azzopardi (1973) 20 FLR 345 cited
R v Danaher; ex parte Olzer Industries Pty Ltd [1969] VR 445 cited
Re JRL; Ex parte CJL (1986) 161 CLR 342 considered
Re Magavalis [1983] 1 Qd R 59 cited
Rose v Humbles [1970] 1 WLR 1061 cited
Rose v Humbles [1972] 1 WLR 33 citedDate of hearing: 28 February 2011 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 56 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Ms F Nelson QC Solicitor for the Respondent: Camatta Lempens
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 117 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: KAZIMIR KOWALSKI
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Details
- AGLC
- Kowalski v Bourne [2011] FCA 269
- Case
- [2011] FCA 269
- Decision Date
CaseChat Overview and Summary
The High Court heard an appeal brought by Kowalski against Bourne. Kowalski alleged that Bourne had illegally sued him for the sum of $6,684.11 and that this was a breach of s 41 of the Legal Practitioners Act 1981 (SA) and fraud. Kowalski sought the return of that sum plus compound interest since 29 January 1993. Bourne responded by denying the allegations and threatening to forward Kowalski’s correspondence to various persons if Kowalski did not retract his allegations. The legal issues before the court were whether there was an actual or reasonable apprehension of bias by reason of prejudgement and whether the Federal Magistrate was obliged to adjourn the proceeding instead of giving judgment.
The court found that there was no actual or reasonable apprehension of bias by reason of prejudgement as the Federal Magistrate had fulfilled their necessary judicial functions. The court held that the Federal Magistrate was not obliged to adjourn the proceeding under Federal Magistrates Court Rules 2001 (Cth) and that Kowalski was mentally capable. The court found that Kowalski had abandoned his case during cross-examination and that there was no incapacity rendering him incapable of conducting a proceeding. The appeal was dismissed, and Kowalski was ordered to pay Bourne’s costs of and incidental to the appeal.
The court found that there was no actual or reasonable apprehension of bias by reason of prejudgement as the Federal Magistrate had fulfilled their necessary judicial functions. The court held that the Federal Magistrate was not obliged to adjourn the proceeding under Federal Magistrates Court Rules 2001 (Cth) and that Kowalski was mentally capable. The court found that Kowalski had abandoned his case during cross-examination and that there was no incapacity rendering him incapable of conducting a proceeding. The appeal was dismissed, and Kowalski was ordered to pay Bourne’s costs of and incidental to the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of and incidental to the appeal, to be taxed on an indemnity basis (if not agreed).
Note:
Background
Background to the litigation
Before turning to the grounds of appeal it is helpful first further to detail the origins of this appeal and to summarise the course of proceedings in the Federal Magistrates Court.BACKGROUND EVENTS Mr Kowalski’s retainer of Stanley & Partners was terminated in 1991, at which time another firm, R J Cole & Partners, commenced to act for Mr Kowalski. In 1991, Stanley & Partners rendered a series of accounts to Mr Kowalski in respect of that firm’s professional services. The accounts were respectively dated 25 February 1991 (two accounts) and 8 November 1991. On 17 September 1991, in response to a letter earlier that month from Stanley & Partners querying whether Mr Kowalski was prepared to pay the fee accounts by then rendered, R J Cole & Partners wrote to Stanley & Partners noting an intention on the part of that firm to institute proceedings against Mr Kowalski for outstanding fees in respect of professional services and requiring that firm to tax its bills of costs in relation to such services. Stanley & Partners did not thereafter proceed to have those bills of costs taxed. When, by January 1993, fee accounts remained unpaid, Stanley & Partners instituted proceedings against Mr Kowalski in the Magistrates Court at Adelaide for the recovery of the total of those accounts. Together with court costs and professional costs, the total amount claimed was $6,684.11. On 29 January 1993, Mr Kowalski signed a consent to the entry of judgment against him in this amount. In July 1993 Mr Kowalski paid in full the amount of the judgment. On 25 April 2010 Mr Kowalski wrote to Mr Bourne who, by then, had left Stanley & Partners and established a firm known as Bourne Lawyers. In that letter Mr Kowalski drew attention to the request which R J Cole & Partners had made on his behalf of Stanley & Partners that that firm tax its bills of costs and to the failure of this to occur. He alleged that Mr Bourne had “illegally sued” him for the sum of $6,684.11. He alleged that Mr Bourne had “deliberately and consciously breached s 41 of the Legal Practitioners Act 1981 (SA) (Legal Practitioners Act) and you have obtained the sum of $6,684.11 from me by fraud”. He sought from Mr Bourne the return of that sum, “plus compound interest since 29 January 1993”. Mr Kowalski added, “I reserve the right to provide a copy of this letter to the Police, Governor of South Australia, Premier Mike Rann MP, the Attorney General and the Parole Board [sic]”. Mr Kowalski’s inclusion of the Parole Board in his intended list of addresses would seem to be referable to his also addressing his letter to Mr Bourne in his capacity as “Deputy Presiding Member of the Parole Board of South Australia”. Mr Bourne replied to this letter in his professional capacity by facsimile on 26 April 2010. Substantively, his response was as follows:Your allegation of fraud, although ridiculous, is clearly intended to cause me to pay money to you in order to avoid the embarrassment of correspondence being sent by you to various persons. I draw your attention to s 172 of the Criminal Law Consolidation Act 1935.To this Mr Bourne added a request for retraction by 28 April 2010, failing which he signified that he would forward Mr Kowalski’s letter to the Presiding Member of the Parole Board, the Minister for Corrective Services and to the Attorney-General.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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