Kowalski v Cole
[2009] FMCA 1222
•14 December 2009
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) R J Cole & Partners v Kowalski (Unreported Magistrates Court decision of Magistrate Ward delivered on 16 July 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. In the alternative that the Applicant’s proceedings be struck out insofar as those proceedings relate to the Legal Practitioners Act, the Fair Trading Acts and the Misrepresentation Act on the basis that the same do not fall within the jurisdiction of the Federal Court (sic) or in the alternative that the statement of claim does not disclose any cause of action with respect to the same; and
5. In the alternative that the Applicant provide security for the Respondents’ costs in the sum of $30,000.
The Applicant commenced these proceedings on 29 April 2008 with the filing of an Application. The final orders sought by the Applicant in the Application are as follows:
1.An order that the first, second and third respondent is guilty of impropriety, misappropriation or theft, fraud, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s31(1), (2), (6), (7a) and (8) the Legal Practitioners Act 1981, unconscionable conduct, contravention of s.8, 8A and 9 the Fair Trading Act 1999 and s.51AB, s51AC and s52 of the Trade Practices Act 1974, together with a breach of s.4, s6, s7 and s8 of the Misrepresentation Act and conversion and they have failed to act in good faith, they are liable to repay to the applicant the sum of $11,935.50 that they have received from him, the sum of $18,634.66 that they illegally transferred from the applicant’s trust account into their office account on 31 August 1992 and the sum of $3000.00 that they have failed to pay to the applicant for his consent to judgment, dated 24 June 1992, for his eye injury claim, plus compound interest since 31 August 1992 and since 14 June 1994, say $100,710.00, or be determined by the Honourable Federal Magistrates Court.
2.In the alternative, an order that the first, second and third respondent are guilty of impropriety, misappropriation or theft, fraud, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s31(1), (2), (6) (7a) and (8) the Legal Practitioners Act 1981, unconscionable conduct, contravention of s.8, 8A and 9 of the Fair Trading Act 1999 and s.51AB, s51AC and s52 of the Trade Practices Act 1974, together with a breach of s.4, 26, 27 and s8 of the Misrepresentation Act and conversion and they have failed to act in good faith, an order should be made that the respondent’s (sic) pay damages to me, under s82 and s87 of the Trade Practices Act, in the sum $33,570.16, plus compound interest since 31 August 1992 and since 14 June 1994, say $100,710.00 or to be determined by the Honourable Federal Magistrates Court.
3.An order for costs and disbursements of an incidental to this application on an indemnity basis.
4.Any other or further orders that the Honourable Court deems fit.
On 10 June 2008 orders were made that the action proceed by way of pleadings and the Applicant given fourteen days to file a Statement of Claim. The Statement of Claim was filed on 12 June 2008.
The Respondents’ Application in a Case first came before the Court on 11 August 2008, at which time it was noted that the Respondents would also rely on s.17A of the Federal Magistrates Act 1999 (Cth) (“the FM Act”) to have the Applicant’s claim dismissed. The hearing of the Respondents’ Application in a Case was set down for 13 November 2008.
At the hearing on 13 November 2008 argument was heard on the question of the striking out of the Applicant’s proceedings. As the Statement of Claim did not clearly express any cause of action to be advanced and as the Applicant was an unrepresented litigant I considered that the Applicant should be given an opportunity to file an Amended Statement of Claim that properly pleaded his case. Orders were made that the Applicant file and serve an Amended Statement of Claim by 19 December 2008 and the Respondents excused from filing a Defence until further order.
The matter was set down for further interim argument on 10 February 2009, with the intention that the Respondents’ Application in a Case would be determined on the basis of the Amended Statement of Claim. The Amended Statement of Claim was filed on 17 December 2008.
On 10 February 2009 the Applicant failed to appear. The matter was adjourned to 21 April 2009 for interim argument on that day. The further argument was heard on 21 April 2009 and 15 October 2009.
Background information
Before addressing the issues raised by the Application it is helpful to have some understanding of the background to the disputes between these parties. It will be seen from what follows that the present proceeding is the last of many proceedings involving the parties.
The first and second respondents are solicitors in general practice in South Australia. They operate as an incorporated legal practice with the third respondent, the company presently called R J Cole & Partners Pty Ltd (“the Company”), as the legal entity that owns and operates the business. The Company is sometimes referred to in the cases referred to below as Cole Harris Pty Ltd. It is same the legal entity.
The Mitsubishi proceedings
In and about 1989 the Company acted for the Applicant in respect of a number of legal claims. One such claim was a common law action brought against the Applicant’s then employer, Mitsubishi Motors Australia Ltd, for injuries that the Applicant alleged were sustained in the course of his employment (“the Mitsubishi proceedings”). The proceedings were commenced in 1989 in the District Court of South Australia. The proceedings went to trial before His Honour Judge Lee. On 3 July 1992 His Honour found that the Applicant had not sustained injury in the manner that he alleged. The Applicant’s claim was dismissed.[1]
[1] Kowalski v Mitsubishi Motors Australia Ltd (Unreported District Court decision of Judge Lee delivered on 3 July 1992)
The professional negligence proceedings
In 1996 the Applicant brought proceedings for damages against the Respondents in the District Court of South Australia (“the professional negligence proceedings”). In those proceedings the Applicant alleged that the Respondents had acted improperly or negligently or both in their conduct of the Mitsubishi proceedings. The professional negligence proceedings went to trial before His Honour Judge Anderson, with a decision being handed down on 21 March 2002. His Honour found that the Respondents had not acted improperly or negligently in their conduct of the Mitsubishi proceedings. The Applicant’s proceedings were dismissed. The Applicant did not appeal the decision. At the hearing before me, the parties provided me with a copy of His Honour Judge Anderson’s reasons of 21 March 2002.[2]
[2] Kowalski v Sim, Harris, Cole, Dowd & R J Cole & Partners [2002] SADC 300
The taxation proceedings
Also in 1996, the Respondents brought proceedings in the Supreme Court of South Australia to have their solicitor/client costs of the Mitsubishi proceedings taxed (“the taxation proceedings”). There was a dispute between the Applicant and the Respondents about who was entitled to the sum of $9,118.45 that the Respondents had in their trust account.
The disciplinary proceedings
The Applicant has at all times alleged that the Respondents had acted improperly in relation to the Applicant’s trust account monies. The Applicant lodged a private complaint against the Respondents with the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) with respect to this. On 1 February 2005 the Tribunal delivered their decision[3], finding that the Respondents were not guilty of unprofessional or unsatisfactory conduct. At the hearing the parties provided me with a copy of the Tribunal’s report.
[3] 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)
The trust account balance proceedings
On 22 July 2005 His Honour Judge Lunn granted the Applicant’s application that the taxation proceedings be dismissed for want of prosecution.[4] The third respondent thereupon issued proceedings against the Applicant in the Christies Beach Magistrates Court for orders to determine who was entitled to the trust account balance (“the trust account balance proceedings”). A judgment was delivered by Magistrate Ward on 16 July 2007 in which he held that the Applicant had no claim to the $9,118.45 being held in the Respondents’ trust account. The learned Magistrate determined that the third respondent was entitled to the sum being held. At the hearing the parties provided me with a copy of the reasons of the learned Magistrate.[5]
[4] Referred to in Cole Harris Pty Ltd v Kowalski (Unreported Supreme Court decision of Judge Lunn delivered on 31 March 2008)
[5] R J Cole & Partners v Kowalski (Unreported Magistrates Court decision of Magistrate Ward delivered on 16 July 2007)
The application for refund of solicitor/client costs paid
On 16 August 2007 the Applicant issued a notice for specific directions in the Supreme Court of South Australia in the taxation proceedings seeking an order that the third respondent refund to the Applicant the sum of $18,634.66 relating to the third respondent’s costs in the Mitsubishi proceedings. The Applicant’s application was dismissed by His Honour Judge Lunn on 15 October 2007, with the Applicant to pay the third respondent’s costs to be taxed. At the hearing the parties provided me with a copy of the reasons of His Honour.[6]
[6] Cole Harris Pty Ltd v Kowalski (Unreported Supreme Court decision of Judge Lunn delivered on 15 October 2007)
The application to set aside the order dismissing the taxation proceedings
On 25 January 2008 the Applicant issued a further application in the taxation proceedings seeking an order that the Order of 22 July 2005 dismissing the taxation action be set aside. On 31 March 2008 His Honour Judge Lunn dismissed the Applicant’s further application and ordered that the Applicant not be permitted to file any further interlocutory application in the taxation action unless he first paid into the Supreme Court the sum of $1,000 on account of the costs of the third respondent previously ordered against the Applicant in the taxation action. At the hearing the parties provided me with a copy of the reasons of His Honour of 31 March 2008.[7] In para.10 of his reasons, His Honour said:
This application is yet another instance of the defendant putting other parties to needless expense and inconvenience by bringing ill considered and baseless applications. In my fiat of 15 February 2008, quoted above, he was warned that if costs were ordered against him, he would be required to pay them before being allowed to bring any further application. Such orders have already been made against him in other actions. It’s an abuse of process to repeatedly put other parties to the expense of defending continual applications which are foredoomed to failure: Andrew Garrett Wines Resort Pty Ltd v National Australia Bank [2006] SASC 381, 19 December 2006; Andrew Garrett Wines Resort Pty Ltd v National Australia Bank [2007] SASC 173, 17 May 2007. The costs ordered against the defendant on 15 October 2007 have not yet been paid.
[7] Cole Harris Pty Ltd v Kowalski (Unreported Supreme Court decision of Judge Lunn delivered on 31 March 2008)
The first respondent states in his Affidavit that the Applicant has not appealed the decision of Magistrate Ward in the Magistrates Court action and that the third respondent has taxed its costs in the Magistrates Court action in the sum of $4,990. The Applicant does not dispute this.
Submissions
The Respondents submit that the current proceedings by the Applicant seeks to re-litigate matters which have already been judicially determined in these earlier actions and that, as such, the proceedings are vexatious and an abuse of process. It is also submitted by the Respondents that the Statement of Claim fails to disclose any proper cause of action nor does it seek any relief with respect to the Legal Practitioners Act 1981, the Fair Trading Act 1987 or the Misrepresentation Act 1972 as pleaded in the Initiating Application. The Respondents say that the proceedings should be dismissed and the Applicant ordered to pay their costs.
The Applicant’s Amended Statement of Claim comprises twenty-two pages of condensed typing divided into 106 paragraphs. The pleading is a rambling and convoluted diatribe on the alleged misconduct of the Applicant’s former solicitors, the Respondents. There has been no attempt by the Applicant to concisely and precisely plead his case. There has been no attempt by the Applicant to confine the pleading to the material facts necessary to establish the causes of action but instead includes much material that is, at best, evidence by which facts might be proved or, at worst, totally irrelevant.
A party is entitled to have the case they have to meet presented in an intelligible manner. The Respondents should not be required to plead to the Amended Statement of Claim. I have no difficulty in finding that the pleading does not comply with Order 11 Rules 1, 2, 3 and 16 of the Federal Court Rules 1979 (as amended)[8] and should be struck out. For reasons that follow this is not an appropriate case for the Applicant to be permitted to file a Further Amended Statement of Claim.
[8] Order 11 of the Federal Court Rules 1979 (as amended) applies as there is no equivalent Federal Magistrates Court Rule – see Federal Magistrates Court Rules 2001, Rule 1.05(2).
The Respondents submit that the proceedings should be dismissed on the basis that they are “frivolous, vexatious or an abuse of process” on the basis that the Applicant seeks to re-litigate matters that have already been determined in other proceedings. For reasons that follow, I agree with that submission.
The relief that the Applicant seeks in paragraphs 7, 8 and 9 of the Amended Statement of Claim all relate to or are in connection with one or other of the various proceedings referred to in paragraphs 11 to 18 of these Reasons. In sub-paragraphs 7.1, 7.2, 7.3 and 7.4 of the Amended Statement of Claim the Applicant seeks either repayment of monies paid to the Respondents by the Applicant as legal fees or, alternatively, monies initially held in the Respondents’ trust account and applied by them towards satisfaction of their legal fees. In paragraphs 7.5 and 8 of the Amended Statement of Claim the Applicant seeks punitive damages for “… the unwarranted stress and the anxiety that the [Respondents] have placed upon the [Applicant] since 12 June 2002”. It is not immediately apparent what the relevance of the date 12 June 2002 is but it is reasonable to assume that damages claimed relate to matters connected with the legal services provided by the Respondents as referred to earlier in these Reasons.
I have previously mentioned that it is extremely difficult, if not impossible, to identify causes of action in the Amended Statement of Claim. The factual material pleaded all relates to whether or not the Respondents properly performed their legal obligations. The Respondents’ performance of their legal obligations to the Applicant has been extensively examined in many of the proceedings referred to earlier in these Reasons.
The Applicant’s complaints concerning the Respondents’ conduct that are raised in the Amended Statement of Claim and in his numerous Affidavits and submissions are matters that have already been fully ventilated in the Applicant’s earlier proceedings. I refer in particular to the professional negligence proceedings, the trust account balance proceedings and the Applicant’s application for refund of solicitor/client costs paid.
The well known case of Port of Melbourne Authority v Anshun Pty Ltd[9] stands for the proposition that, once a judgment is entered, no further proceeding can be maintained on the same cause of action. This rule precludes the Applicant from raising in these proceedings a matter that either was or should have been put in issue in the earlier proceedings.
[9] (1981) 147 CLR 589
The Court has power pursuant to s.17A(2) of the FM Act to dismiss proceedings summarily. The Court is empowered to give judgment for the Respondents if satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding. In my opinion the Applicant’s proceedings are hopeless and bound to fail as the issues have already been decided in earlier proceedings. If I am wrong about that then, at the very least, it can be said that the issues should have been raised in the earlier proceedings. I am satisfied that judgment should be given for the Respondents pursuant to s.17A(2) of the FM Act.
For these reasons the proceedings must be dismissed. The Applicant should pay the Respondents’ costs. I will hear the Respondents as to whether they seek costs on other than a party/party basis.
I therefore make the orders as set out at the commencement of these Reasons.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: Ms N. Julius
Date: 14 December 2009
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