Kowalski v Cole & Ors - [2012] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KOWALSKI v COLE & ORS
[2012] SASC 30
Judgment of The Honourable Justice Kelly
2 March 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - ORDINARY RULE
Appeal against an order of a Magistrate dismissing privately laid Information pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA) - whether Magistrate in error in finding that defects in the Information were incurable by amendment - whether Magistrate actuated by bias or whether apprehension of bias on the part of the Magistrate.
Held: appeal dismissed - Information alleges offences not known to the law at the time of the conduct said to give rise to the offences, this, amongst other matters, renders the Information incurably bad - no basis for a finding of actual or apprehended bias.
Summary Procedure Act 1921 (SA) s 181(1), s 181(2); Criminal Law Consolidation Act 1935 (SA) s 134, s 142, s 172; Criminal Law Consolidation (Offences of Dishonesty) Act 2002 (SA); Legal Practitioners Act 1981 (SA) s 31(2), s 96, referred to.
Willing v Hollobone (No 2) (1975) 11 SASR 118; Bedi v The Queen (1993) 61 SASR 269; Maxwell v Murphy (1957) 96 CLR 261, considered.

KOWALSKI v COLE & ORS
[2012] SASC 30
Magistrates Appeals: Civil
KELLY J.

This is an appeal against an order of a Magistrate of 20 December 2011 dismissing a privately laid Information pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA).
Introduction
In deciding whether the Magistrate was in error in so dismissing the Information, the following issues arise for consideration: is the Information defective, if the Information is defective, in what way is it defective, and if defective, by amendment, can the defects identified be cured pursuant to s 181(2)(a) of the Summary Procedure Act?
In answering these questions subsidiary questions arise. Ultimately, of course, the question is whether the Magistrate was in error in dismissing the Information.
This matter does not have an uncomplicated history and it is worth setting out in some detail how the matter came to be before me.
On 23 September 2011, the informant and appellant, Kazimir Kowalski, filed a private Information alleging 18 counts against a number of defendants, the Information naming the defendants as follows: “Russell John Cole, Andrew Sim, RJ Cole & Ptners Pty Ltd and its servants & agents”. By the Information, the other orders sought were “compensation and penalty of imprisonment. In the sum of $100, 000.00”. Only one of the defendants has been served; namely, Russell Cole, who was present at Court on most of the relevant occasions in the Magistrates Court and was represented by counsel at the hearing before me. The appellant has represented himself throughout the proceedings.
The matter first came before the Magistrate on 15 November 2011, on which…

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 & Ors

Details

AGLC: Kowalski v Cole & Ors [2012] SASC 30
Case: [2012] SASC 30
Decision Date: 2 March 2012

CaseChat Overview and Summary

The appeal in Kowalski v Cole & Ors was brought against a decision of a Magistrate who dismissed a privately laid Information on the grounds that the defects within it were incurable by amendment. The Information was laid under the Summary Procedure Act 1921 (SA) and the appeal centred on whether the Magistrate was in error in finding the defects incurable and whether there was any bias or apprehension of bias on the Magistrate's part. The primary issues before the court were the sufficiency of the Information and the potential for judicial bias.

The court examined the defects in the Information, finding that it alleged offences that were not recognised by law at the time of the alleged conduct. This, among other issues, rendered the Information incurably bad. The court also considered whether there was any actual or apprehended bias on the part of the Magistrate. After thorough examination, the court found no basis for such a finding. The appeal was dismissed as the court upheld the Magistrate's decision that the Information was incurably defective and found no evidence of bias.

The court found no merit in the respondents' alternative submission that the prosecution was an abuse of process, as it attempted to re-litigate matters already decided by final judgments. Given the court's conclusions on the primary issues, it deemed it unnecessary to address this contention. The appeal was dismissed, and no further orders were required.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

Finally, it is to be noted that counsel for the respondents submitted in the alternative that the prosecution below is an abuse of process in the sense that it attempts to re-litigate matters that have already been the subject of final judgments, and that if the Magistrate was found to be in error in dismissing the Information in the manner he did, then I ought to permanently stay the prosecution as an abuse of the processes of the Magistrates Court. In light of my conclusions above, no need arises for me to address this contention. Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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