Kowalski v Complete Exhaust Specialists Marion
[2011] FMCA 272
•4 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWALSKI v COMPLETE EXHAUST SPECIALISTS MARION & ORS | [2011] FMCA 272 |
| CONSUMER LAW – Application for Federal Magistrate to disqualify himself – application refused – application summarily dismissed. |
| Trade Practices Act 1974 (Cth), ss.6, 51, 52 & 53 Fair Trading Act 1987 (SA), ss.56, 57 & 58 Federal Magistrates Court Rules 2001, r.13 |
| British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 Re JRL; Ex parte CJL [1986] HCA 39 Kowalski v Complete Exhaust Specialists Marion [2010] FCA 1363 |
| Applicant: | KAZIMIR KOWALSKI |
| First Respondent: | COMPLETE EXHAUST SPECIALISTS MARION |
| Second and Third Respondents: | DA & RG STRAWBRIDGE |
| File Number: | ADG 150 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 4 April 2011 |
| Date of Last Submission: | 4 April 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 4 April 2011 |
REPRESENTATION
| The Applicant: | In person |
| The Respondents: | No appearance |
ORDERS
That the application that Federal Magistrate Lindsay recuse himself from hearing of this matter today is refused.
That the application filed on 10 December 2010 be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 150 of 2010
| KAZIMIR KOWALSKI |
Applicant
And
| COMPLETE EXHAUST SPECIALISTS MARION |
First Respondent
And
| DA & RG STRAWBRIDGE |
Second and Third Respondents
REASONS FOR JUDGMENT
Before me this morning is an Application in a Case filed on
14 February 2011 which asked me to set aside the order I made on 4 February in Mr Kowalski’s absence. There is an Application in a Case filed on 3 February which asked me to set aside the orders I made on 24 August 2010 and 31 January 2011. There is an Application in a Case filed on 10 December 2010 and that seeks an order that my orders of 24 August be revoked, and then there is the original application.
I say the original; the application of 11 June 2010 which was an application that was summarily determined by me on 24 August 2010.
Because Mr Kowalski has asked for that original application, as it were, to be revived in one of the Applications in a Case to which I have referred, I am just including that application as one of the four applications, in one sense or another, before me this afternoon.
I should also note that one aspect, at least, of the Application in a Case that was filed on 3 February, has already been determined, and that is the orders I made on 31 January and the orders I have made on 4 February have already been dealt with. On 31 January Mr Kowalski did not attend Court in respect of an application that he filed on
10 December and I dismissed that application but I gave him liberty to apply to set that order aside provided he did so within seven days and, at the time of making such application, filed an affidavit explaining the circumstances of his non attendance on 31 January.
He filed the application in a case filed on 3 February and supported it with an affidavit but it did not purport to explain the reasons for his non attendance or explain them in any satisfactory way, and I made an order in chambers on 4 February refusing his application to set aside the order. He subsequently made a further application, and that is the application of 14 February which I heard on 22 February and, on that day, I set aside the default judgment. So any problems enuring to Mr Kowalski on account of his non attendance on 31 January and then his failure to explain the reasons for his non attendance have evaporated. The default order has been set aside. So that really leaves us then having to deal with the matter as it came before me on 31 January, and that was the Application in a Case filed on 10 December 2010.
Before I deal with the substantive application, I should note that Mr Kowalski has also made an application this morning orally but it reinforces what was also in his Applications in a Case filed on 3 February and 14 February, and that was that I disqualify myself from further hearing of this matter. I will return to that in a moment.
I should say, firstly, though a word or two about the summary dismissal order on 24 August 2010. Mr Kowalski filed an application on 11 June 2010 in which he sought orders directed to Complete Exhaust Specialists and Mr and Mrs Strawbridge, and I note here that the first respondent, so described, is nothing more than a business name relating to the partnership that is conducted by Mr and Mrs Strawbridge so I will hereafter refer to Mr and Mrs Strawbridge as the respondents.
He filed an application asking that the Court deal with Mr and Mrs Strawbridge for breach of s.51 of the Trade Practices Act 1974 (Cth) (“the Act”). The application also relied upon the provisions of s.6(3)(a) and (b) of the Act. I had dismissed an earlier application of Mr Kowalski against the respondents on the basis that neither of them were corporations and it was in response to those orders that Mr Kowalski filed his application on 11 June which invoked the provisions of s.6(3)(a) and (b) of the Act in that he was now alleging that the conduct to which his application is addressed involved the use by the respondents, or either of them, of telephonic services and that provided the jurisdictional basis for the Court to hear the matter. I gave Reasons on 24 August as to why I thought Mr Kowalski’s application should be summarily dismissed and there were a number of matters which led me to the conclusion that the application ought to be dismissed as an abuse of the process of the Court under Rule 13.10 of the Rules of the Court.
The first matter was that I was concerned about the possibility that the reference to telephone communication was something that had been raised opportunistically by Mr Kowalski in the light of his earlier jurisdictional difficulties. Amplifying that concern was the fact that the affidavit material filed in support of the application told me this as did the application itself in paragraph 1.3: that the use of telephonic communication by the respondents or involving the use of a telephone conversation was a conversation between Mrs Strawbridge and the applicant on 26 August. The application related to a contention that on 25 August i.e. the day before, Mr Kowalski had been informed through his wife that the muffler on his motor vehicle was the cause of a knocking noise that was apparent every time he started his car up and had to be replaced.
In reliance on that representation, Mr Kowalski said he authorised the replacement of the muffler and it subsequently turned out not to have remedied the knocking noise which had concerned him. The only reference to telephonic communication is on the following day, 26 August, that is, on the day after the telephone call in which the representations which I understood to be the gravamen of Mr Kowalski’s case were made. It seemed to me to raise significant difficulties for Mr Kowalski that the use of the telephone arose after the communications. In other words, the conduct to which the application was directed had already occurred before any telephone communication was engaged in, on his case.
Added to that was my concern that the reliance upon s.6(3)(a) and (b) of the Act had arisen only after the application failed on jurisdictional grounds and it seemed to me that there was a basis for expecting Mr Kowalski to rely upon all those matters said to ground the jurisdiction when the application was undertaken in the first instance. But it was a combination of those matters as I referred to them in paragraph 32 of my Reasons on that day that persuaded me that it would be an abuse of process to enable the application to proceed.
Mr Kowalski applied for leave to appeal from that determination of mine and that appeal was heard by Gray J and in Reasons which his Honour gave on 17 November in Kowalski v Complete Exhaust Specialists Marion [2010] FCA 1363 he refused leave to appeal but he did so after making it clear that he thought that it was arguable that I had fallen into error in finding that the institution of the application was an abuse of process.
His Honour did not reach any final view about that but he thought that it was arguable and that was the test to which he was addressing himself on the question of leave to appeal. Ultimately, he did not grant the leave to appeal but only upon the basis that he was aware and made Mr Kowalski aware that; the summary judgment order being interlocutory in nature, there was nothing to prevent Mr Kowalski from bringing a fresh application. I had already indicated in my Reasons that I did not think Mr Kowalski was estopped from bringing such an application and the key part of his Honour’s determination is at paragraph [14] of his Reasons where he says:
It should be pointed out at once that the dismissal on a summary basis of the applicant’s application in the Federal Magistrates Court does not prevent him from filing another application. It is open to him to reagitate the same issues, if he can, in application after application, there being no form of estoppel that prevents him from doing so. If he raises new elements that might bring the proceeding within the jurisdiction of the Federal Magistrates Court, he is entitled to do so. It follows then that it is presently open to the applicant to return to the Federal Magistrates Court and make another application. If he can do so by presenting, in that application, facts that would bring it within the jurisdiction of the Federal Magistrates Court, then that court is bound to deal with it.
That accounts for Mr Kowalski’s application filed on 10 December.
In that application he seeks, by way of final order, an order that my decision of 24 August be set aside or revoked and that his application of 11 June, dismissed by me summarily on 24 August, be listed for trial before another Federal Magistrate.
So Mr Kowalski’s response to the terms of his Honour’s Reasons has been to apply to set aside my orders of 24 August. He has not brought a fresh application to the Court; he has not set out in such a fresh application the jurisdictional and other matters upon which he relies to bring the application. The grounds of his application are set out in the Application in a Case filed on 10 December. After the reference to that passage from his Honour’s reasons, which I have just placed on the transcript, he indicates that he relies on the whole of Gray Js decision and then goes on to allege the breach of s.52 and s.53 of the Act and ss.56 to 58 inclusive of the Fair Trading Act 1987 (SA). The affidavit filed in support of the application on 10 December really just amplifies those same matters but presents as an exhibit the reasons for decision of Gray J.
So that is how the matter comes before me at the present time. As I say, I think the first thing I must deal with though is Mr Kowalski’s application that I should recuse myself from hearing the application that is before me today. In making that application, Mr Kowalski referred me, in particular, to the decision of British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, a decision of the High Court of Australia.
It is a decision which canvasses a number of other decisions of the High Court and the New South Wales Court of Appeal in relation to the circumstances in which a judicial officer should disqualify themselves from hearing a matter upon the basis of apprehended bias.The decision is not be confused with another decision with the same plaintiff and arising out of the same litigation, or associated litigation, being British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109, which is a decision of Brereton J in the New South Wales Supreme Court, which itself contains a very detailed discussion of the relevant High Court authorities. The Laurie decision is one in which the High Court ultimately determined that the judicial officer ought not to be obliged to recuse himself. I do not see any purpose in going into a detailed discussion of the facts and circumstances relating to Laurie’s case but the Judge, Curtis J, had taken evidence on commission in relation to what it was alleged was a policy on the part of the applicant in that case, the tobacco company, to destroy documents in its possession which might have evidenced its negligence in relation to the promoting of tobacco products.
Curtis J had conducted a number of hearings in the United States in the Laurie matter but it also conducted a number of hearing in an earlier matter in which he had come to the conclusion that he accepted the evidence of a Mr Galson who had alleged fraud on the part of the tobacco company with respect to the document retention policy, which it had instituted. Ultimately, the High Court determined that Curtis J was right in not recusing himself. The decision of the Chief Justice in the case, in paragraph 1, begins with an observation of Mason J in an earlier case of Re JRL; Ex parte CJL [1986] HCA 39 in which his Honour said;
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
His Honour the Chief Justice goes on in paragraph 1 to say that that observation is applicable to this case. So, in a sense, it is a curious authority for Mr Kowalski to rely upon because it turns out, insofar as his application that is made today, to me to recuse myself, is based significantly – not exclusively but significantly – upon the circumstance that I have determined the application adversely to him in August of last year and that a reasonably informed bystander, on being acquainted with that, and the relevant facts and circumstances of the case, might form the view that I would not bring an impartial mind to bear upon the adjudication of the issues before me.
I do not want to be unfair to Mr Kowalski. I do not think he limited himself to the submission that I was bound to recuse myself only because I determined the matter adversely to him. It was not entirely clear to me what the other matters he was urging upon me in that regard were, but he certainly was urging upon me as another matter my dealing with the application as I had, had been the subject of observations by Gray J that there was an arguable case in relation to me having fallen into error in respect of my summary dismissal of his application in August. As I understand Mr Kowalski, he was saying that the fact there had been that implicit criticism of my reasoning by Gray J – and I pause to confirm that his Honour was only indicating that the ground was arguable – but nevertheless, that my continuing to deal with the matter in the light of that intimation by his Honour itself grounded some apprehension of bias.
It should be plain from the Reasons I am giving that I understand the test to be, on the question of recusal in these circumstances, whether a reasonably informed bystander might come to the view that I would not bring an impartial mind to bear upon the adjudication of the issues that are before me.
I should add there is another passage in Gray Js Reasons upon which Mr Kowalski relied, and I am assuming he raised them to further ground his recusal application, and it was towards the end of his Honour’s reasons when his Honour addressed this question as to whether the matter would come back before me following the refusal of leave to appeal. His Honour said in paragraph [16]:
Against this proposition –
and I interpolate there the proposition was that Mr Kowalski would be no worse off by the leave to appeal being refused:
Against this proposition, the applicant has argued that the same federal magistrate would deal with any new application and would be likely to react to it in the way that he has. That is a matter that is entirely unpredictable. The same federal magistrate may or may not deal with any further application. Indeed, it might be said that there is a greater likelihood that another federal magistrate would deal with any new application than there is that another federal magistrate would be assigned to deal with the instant application if it were returned to the Federal Magistrates Court after a successful appeal. If it be the case that a successful application for bias against the federal magistrate could be made, and I do not suggest that it could, it is open to the applicant to make such an application at any time, and if he is unsuccessful, to rely upon that lack of success in a subsequent appeal if he should lose that proceeding.
In fact, that is what has happened. The matter has come back before me in accordance with the docket system that operates in this Court. The documents filed by Mr Kowalski put me upon notice that the application for disqualification would be made.
Having presided in a number of matters involving Mr Kowalski, it is always tempting to take the course that is being urged upon me and to recuse myself from further hearing, but I think the other side of the coin in relation to the obligation of having to disqualify myself from continuing to hear a matter where there is a chance that the reasonably informed bystander might form the view that I might not bring an impartial mind to bear upon the adjudication of the issues, is that I should not disqualify myself unless a consideration of the issue leads me to be satisfied that proper grounds exist for that conclusion. The integrity of the process is the important matter on each side of the coin there.
True it is that the application in the form in which it was before me in August 2010 was dismissed by me as an abuse of process, but the decision was not based upon any findings of credit in relation to Mr Kowalski. He had not entered the witness box at that stage. There were some observations made about whether the reliance upon the telephonic communication was something that had been carried out strategically or opportunistically, but that was coupled with the circumstance that the telephone call relied upon succeeded, rather than preceded, the conduct sought to be impugned by the application itself. So they are not findings of credit, they are not suggestions that Mr Kowalski has lied. They are suggestions that matters have been raised with a view to grounding the jurisdiction of the Court.
That really is the matter that causes me the most concern in respect of the proposed disqualification, but my concerns in relation to the fact that the telephone communication had not been raised as a ground of jurisdiction in the first application Mr Kowalski filed and my concerns that it was now being promoted to ground the jurisdiction in the second application are not, in my view, matters that go to Mr Kowalski’s credit. It does not involve me making a finding that Mr Kowalski has set out to mislead or deceive the Court in any way. It is a suggestion that matters have been resorted to in circumstances where it would operate as an abuse of process of the Court to permit those matters to ground an application when the same matters had not been raised at an earlier time.
That is really the heart of my concern in relation to that telephone communication issue and, indeed, to the extent that the matter reflects in any way upon Mr Kowalski’s creditworthiness, the circumstance that he deposed that the conversation occurred on the day after rather than at the time of or prior to the representations said to constitute the conduct, the subject of the application, is a matter that might be thought to – just from the perspective of creditworthiness – might be thought to enhance the truthfulness of Mr Kowalski’s account. It was not the truthfulness of the facts that he was alleging that were my concern. It was the circumstance in which they were being raised. They were being raised when they had not been raised at an earlier time and appeared to be little connection between the conduct alleged and the telephonic communication relied upon.
So it is a finely balanced matter, and I remind myself that the test is a “might” test. It was not always so, and the decision of the High Court in the most recent British American Tobacco case makes that plain.
It is only the possibility that the reasonably informed bystander might take the view that I would not bring an impartial mind to bear upon the adjudication of the issue. On balance, I am not satisfied that such is the case having given the matter what I hope is very careful consideration.
Certainly the facts as I have outlined them, and I will come to the substantive application now, are highly suggestive of the possibility that Mr Kowalski will be unsuccessful in his application, but his lack of success is not something which I am able to conclude a reasonably informed bystander would see as a function of my lack of impartiality. It would, rather, be a function of the application that Mr Kowalski has brought before the Court because what he has done is that, armed with the remarks of Gray J on the question of the arguable nature of the ground sought in the leave to appeal application, he has not brought a fresh application, as his Honour adumbrated he might.
He has brought an application to set aside my orders of 24 August.
My orders of 24 August determined the application that was then before the Court. As his Honour, with respect, quite properly points out the interlocutory nature of that order and the fact that no estoppel operates in this environment means that Mr Kowalski can bring a fresh application and it will be determined upon its own merits. It can relate to precisely the same subject matter as the earlier application.
Any application he brings in that context, and especially any matters that are relied upon to ground the jurisdiction of the Court, will be determined on their merits altogether separately from what has passed in relation to the earlier application which is now extinct.
That, if I may say so, is what I think his Honour had in mind and, to the extent that Mr Kowalski was to get any encouragement or any succour from his Honour’s Reasons, it would be seen that it was directed towards the bringing of a fresh application on that basis. Mr Kowalski has not done that, he has simply brought an application to ask me, in the exercise of my discretion, to set my orders aside and I think, from the application itself of 10 December and the affidavit filed in support of it, he has done that, pointing to the remarks of Gray J in relation to the leave to appeal issue to which I have already referred. Nothing that fell from his Honour in the leave to appeal adjudication, in my view, provides me the basis for the setting aside of the orders I made in respect of the earlier application.
If it were otherwise, that would be, as it were, to allow Mr Kowalski to achieve indirectly what he was unable to obtain directly by his approach to the Federal Court and that was the setting aside of that order. I think he has misapprehended – and I am prepared to assume he has misapprehended innocently – what it was his Honour’s judgment left open in terms of future action. There is no fresh application before me which I can adjudicate; there is an Application in a Case brought to encourage me to set aside the orders that were the subject of that leave to appeal application. The application is itself misconceived, I think, and to some extent the Reasons I have given in relation to the substantive matter are linked with the Reasons I give in relation to the application that I recuse myself.
I think any layperson properly appraised of all of the facts and circumstances of the matter (and, as the Chief Justice points out in that British American Tobacco decision, we are to infer that the reasonably informed bystander will take the opportunity to acquaint himself with all of the relevant factual matters) will see that there is an inevitability, it seems to me, about the fact that the application must be dismissed.
It is misconceived, and the dismissal of the application flows not from any apprehension that I am dealing with the matter with partiality or with prejudice to Mr Kowalski but just follows from, in my view, the proper adjudication of the application that is before the Court.
In terms of a specific rule upon which I am acting to bring the application to an end, it is a summary dismissal certainly in terms of rule 13.10. I hesitate to use the expression that is used in subrule (c) of that rule about it being an “abuse of process of the Court” but I think in terms of a description of the order I am making that is the most accurate of the three options I have. Certainly, there is no reasonable prospect of him successfully prosecuting the claim and that is because it does not get to first base. Certainly, it is technically something that could be described as a “frivolous application”. I am not sure it could be described as “vexatious.” But I think in describing it as an “abuse of the process of the Court” I am indicating that it is an application that is entirely misconceived and it was for those reasons that I thought it ought to be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 18 April 2011
CORRECTION
Paragraph 25 Line 10 – delete the word “in” at the end of the sentence.
0
4
3