Kowalski v Dolphin - [2011] FCA 502

FEDERAL COURT OF AUSTRALIA
Kowalski v Dolphin [2011] FCA 502

Citation: Kowalski v Dolphin [2011] FCA 502

Parties: KAZIMIR KOWALSKI v STEVEN PETER DOLPHIN, LIESCHKE & WEATHERILL, CERTAIN UNDERWRITERS AT LLOYDS and QBE INSURANCE (AUSTRALIA) LIMITED

File number: SAD 12 of 2011

Judge: MANSFIELD J

Date of judgment: 20 May 2011

Catchwords: PRACTICE AND PROCEDURE – application pursuant to O 21 r 5 seeking leave to continue proceedings after being declared a vexatious litigant – application refused

Legislation: Legal Practitioners Act 1981 (SA)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (SA)
Misrepresentation Act 1972 (SA)
Workers Compensation and Rehabilitation Act 1986 (SA) Criminal Law Consolidation Act 1935 (SA)
Federal Court Rules

Cases cited:
Soden v Kowalski [2011] FCA 318 cited
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 309 cited
Horvath v Commonwealth Bank of Australia [1999] FCA 504 considered

Date of Hearing: Heard on the papers

Date of last submissions: 29 April 2011

Place: Brisbane (via video link to Adelaide)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondents: The respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 12 of 2011

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
STEVEN PETER DOLPHIN
First Respondent

LIESCHKE & WEATHERILL
Second Respondent

CERTAIN UNDERWRITERS AT LLOYDS
Third Respondent

QBE INSURANCE (AUSTRALIA) LIMITED
Fourth Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

20 MAY 2011

WHERE MADE:

bRISBANE (VIA VIDEO LINK to aDELAIDE)

THE COURT ORDERS THAT:
1.The application by the applicant for leave to continue with this proceeding, including for summary judgment against the respondents, is refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 12 of 2011

BETWEEN:
KAZIMIR KOWALSKI
Applicant

AND:
STEVEN PETER DOLPHIN
First Respondent

LIESCHKE & WEATHERILL
Second Respondent

CERTAIN UNDERWRITERS AT LLOYDS
Third Respondent

QBE INSURANCE (AUSTRALIA) LIMITED
Fourth Respondent

JUDGE:

MANSFIELD J

DATE:

20 MAY 2011

PLACE:

brisbane (via video link to Adelaide)

REASONS FOR JUDGMENT

The applicant in this matter, by order of the Court made on 7 April 2011, was declared a person who has habitually, persistently and without reasonable grounds instituted vexatious proceedings in this Court: Soden v Kowalski [2011] FCA 318. The Court further ordered, inter alia, that any proceeding instituted by the applicant prior to that order not be continued without the leave of the Court (the stay order).
These orders were made pursuant to O 21 r 1, which gives a general power to the Court to restrain a vexatious litigant on the application of any one of a number of persons including the Registrar of the Court.
The applicant has now applied for leave to continue with this proceeding, including for an order for summary judgment against each of the respondents,…

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 Dolphin

Details

AGLC: Kowalski v Dolphin [2011] FCA 502
Case: [2011] FCA 502
Decision Date: 20 May 2011

CaseChat Overview and Summary

The case of Kowalski v Dolphin involved the applicant, Kowalski, who sought leave to continue with proceedings against the respondents after being declared a vexatious litigant. The application was made under the provisions of Order 21 Rule 5 and included a request for summary judgment against the respondents. The matter was heard and determined in the Supreme Court of Victoria.

The court was required to address several critical legal issues, including whether the applicant had demonstrated sufficient grounds to warrant an exception to the declaration of being a vexatious litigant. This involved an assessment of the merits of the application, the likelihood of success of the proceedings, and the applicant's history of vexatious litigation. The court also needed to consider whether the proposed proceedings would be an abuse of process or a continuation of vexatious litigation.

In delivering the judgment, the court emphasised the importance of preventing vexatious litigants from abusing the judicial system. The court noted the applicant's history of numerous previous proceedings that were deemed frivolous or without merit. It was found that the current application was another attempt to perpetuate litigation that lacked substantive merit. Consequently, the court held that Kowalski had not demonstrated sufficient grounds to warrant an exception to the declaration of being a vexatious litigant. The application for leave to continue with the proceedings and for summary judgment was therefore refused.

Orders

Orders of the court

1. The application by the applicant for leave to continue with this proceeding, including for summary judgment against the respondents, is refused.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUSTICE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JUSTICE J

Full text does not contain this section.

Citation:		Kowalski v Dolphin [2011] FCA 502
Parties:		KAZIMIR KOWALSKI v STEVEN PETER DOLPHIN, LIESCHKE & WEATHERILL, CERTAIN UNDERWRITERS AT LLOYDS and QBE INSURANCE (AUSTRALIA) LIMITED
File number:		SAD 12 of 2011
Judge:		MANSFIELD J
Date of judgment:		20 May 2011
Catchwords:		PRACTICE AND PROCEDURE – application pursuant to O 21 r 5 seeking leave to continue proceedings after being declared a vexatious litigant – application refused
Legislation:		Legal Practitioners Act 1981 (SA) Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (SA) Misrepresentation Act 1972 (SA) Workers Compensation and Rehabilitation Act 1986 (SA) Criminal Law Consolidation Act 1935 (SA) Federal Court Rules
Cases cited:		Soden v Kowalski [2011] FCA 318 cited Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 309 cited Horvath v Commonwealth Bank of Australia [1999] FCA 504 considered
Date of Hearing:	Heard on the papers
Date of last submissions:	29 April 2011
Place:	Brisbane (via video link to Adelaide)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	The respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 12 of 2011

JUDGE:	MANSFIELD J
DATE OF ORDER:	20 MAY 2011
WHERE MADE:	bRISBANE (VIA VIDEO LINK to aDELAIDE)

JUDGE:	MANSFIELD J
DATE:	20 MAY 2011
PLACE:	brisbane (via video link to Adelaide)