Kowalski v Complete Exhaust Specialists Marion & Anor (No.3)
[2010] FMCA 680
•24 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWALSKI v COMPLETE EXHAUST SPECIALISTS MARION & ANOR (No.3) | [2010] FMCA 680 |
| TRADE PRACTICES – Application for Federal Magistrate to disqualify himself – application refused. |
| Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (Cth) |
| Livesey v NSW Bar Association [1983] HCA 17 Johnson v Johnson (2000) 201 CLR 488 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 Kowalski v Complete Exhaust Specialists Marion [2010] FCA 412 |
| Applicant: | KAZIMIR KOWALSKI |
| First Respondent: | COMPLETE EXHAUST SPECIALISTS MARION |
| Second Respondent: | BOB STRAWBRIDGE |
| File Number: | ADG 150 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
| The Applicant: | In person |
| First & Second Respondents: | No appearance |
ORDERS
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 150 of 2010
| KAZIMIR KOWALSKI |
Applicant
And
| COMPLETE EXHAUST SPECIALISTS MARION |
First Respondent
| BOB STRAWBRIDGE |
Second Respondent
REASONS FOR JUDGMENT
This matter was called on this morning at 10am. Mr Kowalski was in attendance and I confirmed with him that my Associate had asked yesterday if he would be in a position to make further submissions this morning in relation to the question of summary dismissal, and in particular, whether his application was liable to be summarily dismissed as an abuse of process. He provided me with a written submission in relation to that. The written submission is that of
23 August 2010 and I have had regard to it during the course of that hearing and he made some further oral submissions.
During the course of the oral submission he alluded to what he says was the need for me to disqualify myself from hearing this matter because I had been involved in the summary determination of the earlier application relating to this same cause of action. I say he alluded to it because he did not specifically ask me to rule upon an application but there was latent in the submissions he made to me this morning a suggestion that that is what he wanted me to do, and I thought out of a desire for completeness in terms of dealing with everything that is raised by the proceedings, I ought to regard what he put to me this morning as an application to disqualify myself and deal with it on that basis even if it was not expressly articulated in that way. The only reason I could discern in what he was putting in the course of his submissions on this topic was that because I had summarily determined the matter back in March of this year in proceedings numbered ADG 284 of 2009 I should have recused myself from hearing this application.
It was related to his repeating the contention he unsuccessfully promoted before me in the earlier proceedings that I had descended into the arena on behalf of the respondents and should disqualify myself for that reason – that was a submission he made in the earlier proceedings because I had excused the respondents from attending after the jurisdictional point was raised, and he submitted that in some way I had myself promoted the jurisdictional problem that ultimately led to the summary determination of that application.
I did not accede to his application to disqualify myself. It was one of the parts of my judgment about which Mansfield J refused leave to appeal in relation to that matter (see Kowalski v Complete Exhaust Specialists Marion [2010] FCA 412).
The test for disqualification on the grounds of apparent bias has been articulated in a number of cases - Johnson v Johnson (2000) 201 CLR 488, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the authorities are very usefully and thoroughly discussed by Brereton J in the Supreme Court of New South Wales in British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109.
I should disqualify myself if a reasonably informed layperson who had an opportunity to become aware of these circumstances or who was notionally sitting at the back of the court when these matters were unfolding would take the view that I could not bring a fair and impartial mind to bear in determining the application before me.
The test is a “might test”. A lot depends on what sort of information we impute to the reasonably informed bystander - he has to have some idea of appropriate judicial standards. I do not think these circumstances give rise to any reasonable apprehension of bias. I summarily determined the matter on the last occasion on jurisdictional grounds and not upon the basis of rejecting any of the evidence that Mr Kowalski gave. It was not a matter of disbelieving him or making any findings adverse to his credit or anything of that nature – if that had been the case I think the High Court has made it plain in Livesey v NSW Bar Association [1983] HCA 17 that I should recuse myself.
It was a finding that the proceedings should be determined for want of jurisdiction. It was ultimately an interlocutory judgment that led to the determination of the application. In my view a reasonably informed bystander knowing that I had summarily determined the matter on that basis would not have any reasonable basis for concluding that I would not bring an impartial mind to bear on the adjudication of the issues that are thrown up by this second but related application.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 1 September 2010
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