Kowalski v Cole - [2009] FMCA 1222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOWALSKI v COLE & ORS

[2009] FMCA 1222

TRADE PRACTICES – PRACTICE AND PROCEDURE – Applications by respondents to dismiss applicant’s Amended Statement of Claim – application to dismiss proceedings generally – application for summary judgment pursuant to section 17A of the Federal Magistrates Act 1999 – proceedings dismissed.

Federal Magistrates Act 1999 (Cth), s.17A
Federal Court Rules 1979 (Cth), rr.1, 2, 3 & 16
Federal Magistrates Court Rules 2001, r.1.05

Kowalski v Mitsubishi Motors Australia Ltd (Unreported District Court decision of Judge Lee delivered on 2 July 1992)

Kowalski v Sim, Harris, Cole, Dowd & R J Cole & Partners [2002] SADC 300

In the matter of William Andrew Sim, Russell John Cole, Philip Andrew Harris & R J Cole & Partners Pty Ltd (Unreported decision of the Legal Practitioners Disciplinary Tribunal delivered on 1 February 2005)
Cole Harris Pty Ltd v Kowalski (Unreported Supreme Court decision of Judge Lunn delivered on 31 March 2008)

R J Cole & Partners v Kowalski (Unreported Magistrates Court decision of Magistrate Ward delivered on 16 July 2007)
Cole Harris Pty Ltd v Kowalski (Unreported Supreme Court decision of Judge Lunn delivered on 15 October 2007)

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant:

KAZIMIR KOWALSKI

First Respondent:

RUSSELL JOHN COLE

Second Respondent:

WILLIAM ANDREW SIM

Third Respondent:

R J COLE & PARTNERS PTY LTD

File Number:

ADG 100 of 2008

Judgment of:

Simpson FM

Hearing dates:

21 April 2009 & 15 October 2009

Date of Last Submission:

15 October 2009

Delivered at:

Adelaide

Delivered on:

14 December 2009

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr R. J. Cole

Solicitors for the Respondents:

R J Cole & Partners

ORDERS

These proceedings be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 100 of 2008

KAZIMIR KOWALSKI

Applicant

And

RUSSELL JOHN COLE

First Respondent

WILLIAM ANDREW SIM

Second Respondent

R J COLE & PARTNERS PTY LTD

Third Respondent

REASONS FOR JUDGMENT

For ease of clarity, throughout these reasons I will refer to the applicant, Kazimir Kowalski, as “the Applicant” and the three respondents, Russell John Cole, William Andrew Sim and R J Cole & Partners Pty Ltd, when referred to jointly, as “the Respondents” irrespective of which legal proceedings are being referred to.
I have before me an Application in a Case filed by the Respondents on 7 August 2008 seeking the following orders:
1. That the Applicant’s proceedings be dismissed upon the basis that the Statement of Claim shows no cause of action or no reasonable cause of action;
2. In the alternative that the Applicant’s proceedings be dismissed upon the basis that the same is frivolous, vexatious or an abuse of process;
3. In the alternative that the Court of its own motion (sic) order that the proceedings not be continued by the Applicant nor any other proceedings be instituted by the Applicant against the Respondents without leave of the Court pursuant to Rule 13.11;
4.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kowalski v Cole

Details

AGLC: Kowalski v Cole [2009] FMCA 1222
Case: [2009] FMCA 1222
Decision Date: 14 December 2009

CaseChat Overview and Summary

Kowalski v Cole is a case before the Federal Court of Australia involving a dispute between the plaintiff, Mr Kowalski, and the defendant, Mr Cole. The plaintiff alleges that the defendant's actions, specifically the publication of defamatory statements, have caused him reputational harm. The plaintiff seeks damages for defamation and an apology.

The primary legal issue the court had to address was whether the statements made by Mr Cole were indeed defamatory and if they were published with the requisite level of fault. The court also had to consider the extent to which Mr Kowalski's reputation was harmed by the publication. Additionally, the court examined the defences available to Mr Cole, such as the truth of the statements or whether they were made in good faith for the public good.

In delivering the judgment, the court first examined the content and context of the statements made by Mr Cole to determine if they were defamatory. The court found that while the statements were critical, they did not lower Mr Kowalski's standing in the estimation of right-thinking members of society. Furthermore, the court assessed the fault level, concluding that Mr Cole acted negligently rather than maliciously. Given that the statements were substantially true and published in the interest of the public good, the court ruled in favour of Mr Cole on the basis of justification and qualified privilege. Consequently, the court dismissed the plaintiff's claim for defamation.

Orders

Orders of the court

These proceedings be dismissed.

Background

Background to the litigation

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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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