Kowalski v BOURNE (No.2)

[2010] FMCA 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOWALSKI v BOURNE (No.2) [2010] FMCA 677

TRADE PRACTICES – Application for Federal Magistrate to disqualify himself – application refused.

Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (SA)

Livesey v NSW Bar Association [1983] HCA 17
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109

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 Lawyers Pty Ltd

ORDERS

1. The oral application by the applicant for Federal Magistrate Lindsay to disqualify himself from further hearing of this matter is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 95 of 2010

KAZIMIR KOWALSKI

Applicant

And

TIM BOURNE

Respondent

REASONS FOR JUDGMENT

1. I have determined this morning not to accede to Mr Kowalski's application to join certain insurers.  Arising from my decision, Mr Kowalski has asked me to recuse myself from further hearing of this matter.  He is making the submission, as I understand it, upon the basis that a reasonably informed layman would come to the view, if observing the proceedings this morning, that I was unable of bringing a fair and impartial mind to bear upon the adjudication of a dispute before me.  That is what he contended was the test.

2. The authorities explicating that being the test for apprehended bias are numerous.  Livesey v NSW Bar Association [1983] HCA 17 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 come to mind. The authorities are usefully summarised by Brereton J in the New South Wales Supreme Court in British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109. I accept that is the test. It is a “might test”. A lot depends, of course, on what we impute to the reasonably informed bystander as to appropriate standards of judicial conduct.

3. It seems that what Mr Kowalski is complaining of here is that because I was unpersuaded by his application to permit the joinder of the insurers, which is an application, as I understand Mr Kowalski's submissions, that he thought to be so meritorious that no judicial officer before him in the application was brought would fail to see the strength of the arguments he provided in support of it, and further, that my inability to understand the self-evident merit of the application he was making, and my refusal of the application, he says, demonstrates not that I was unpersuaded as to the merit of the application, but that I cannot bring a fair or impartial mind to bear upon the adjudication of the dispute. I unhesitatingly reject that submission. 

4. There is no element of the Application in a Case that I determined this morning that has involved me having to consider whether or not the credibility of Mr Kowalski with respect of any aspect of this case was in issue.  Applications in a Case, interlocutory applications, are dealt with as a matter of course in each and every cause that comes before the Court, and in its General Federal Law jurisdiction, and it is a nonsense submission (and I am afraid I have to express myself in that kind of candid language) to suggest that simply because an applicant has unsuccessfully promoted an interlocutory application before the Court, that the rejection of it, in itself, is a matter that is indicative of apprehended bias. No other ground being advanced by Mr Kowalski, despite me giving him numerous opportunities to put any further submissions on the disqualification issue to me, the oral application by Mr Kowalski for me to disqualify myself from further hearing of this matter is refused.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  1 September 2010