Kowalski v Domestic Violence Crisis Service Inc

[2004] FCA 1031

FEDERAL COURT OF AUSTRALIA

Kowalski v Domestic Violence Crisis Service Inc [2004] FCA 1031

STAN LECH KOWALSKI v DOMESTIC VIOLENCE CRISIS SERVICE INC
A18 of 2003

MADGWICK J
25 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	A18 of 2003

BETWEEN:	STAN LECH KOWALSKI APPELLANT
AND:	DOMESTIC VIOLENCE CRISIS SERVICE INC RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appellant is to pay the respondent’s costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	A18 of 2003

BETWEEN:	STAN LECH KOWALSKI APPELLANT
AND:	DOMESTIC VIOLENCE CRISIS SERVICE RESPONDENT

JUDGE:	MADGWICK J
DATE:	25 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. There is before the Court what I take to be an informal application to adduce the evidence of a witness on an appeal from a decision of the Federal Magistrates Court (Driver FM). 

2. The witness is Constable Perkins.  Constable Perkins was at the time of trial before the learned Federal Magistrate a police officer in Norfolk Island.  It was sought by the appellant to tender Constable Perkins’ statement at the hearing, but the tender was refused apparently on the basis that the officer was not available for cross-examination. 

3. Constable Perkins certainly has very pertinent information to give.  However, the truth of the matter is that the appellant had the benefit of a positive finding about Constable Perkins’ recollections.  Driver FM said at para 29:

   ‘I consider myself bound by a finding [in related proceedings of Finn J’s] that Constable Perkins arranged for DVCS [the respondent] to provide assistance to Mr and Dr Kowalski.’

4. The relevant question in the trial was whether the respondent (‘DVCS’) was ever asked to provide assistance to both the Kowalskis instead of only to Dr Kowalski, the appellant’s wife.

5. Finn J’s finding, it is common ground, is to be understood as meaning that Constable Perkins arranged for the Australian Federal Police (‘AFP’) operations branch to convey a request to DVCS to provide assistance to both the Kowalskis.

6. In these circumstances, it seems to me that the real question is whether the learned Federal Magistrate erred in failing to draw an inference that AFP police operations would likely have acted on Perkins’ request.  That is a matter than can be debated on the appeal. 

7. Further, it appears that evidence given by Constable Perkins before the Human Rights and Equal Opportunity Commission was available at the trial in the Federal Magistrates Court and tendered.  Nothing has been shown to indicate that the police officer would wish to depart in any way from that evidence, so that it is not even a case where it is necessary for the Full Court to have further information to understand the full colour of what Constable Perkins might say.  In any case, if any question does arise as to whether Constable Perkins’ statement should have been tendered, that too can be dealt with on the appeal.  The statement speaks for itself and Constable Perkins’ evidence, on the material before me, cannot rise higher in favour of the appellant than that statement.

8. In consequence I reject the application in that regard.

9. The next question sought to be agitated is whether the appellant might have access, by his solicitors, on appropriate conditions as to security of the document, to the original of a log of operations kept by the respondent which contains an entry pertinent to the question of what the respondent, by its agents, understood was the matter of concern at the Kowalski home.

10. It is sought to support this application by arguing that valuable material which might ground an application to adduce further evidence could become available.  I am certainly not going to rule finally now on what might become available as a result of any such forensic examination, but as presently advised I make it clear that I cannot see that the matter would be of sufficient probable weight in relation to disputed factual questions in the proceedings to warrant the reception of fresh evidence.  Nevertheless, if the appellant wants to uplift a document with a view to pursuing a course of action which seems unlikely to succeed but offers no other prejudice to the respondent, I cannot see that there is any justification in preventing him from pursuing such an outside chance of success.  I will grant that application.  There is no reason why that application could not have been made, however, before Stone J.

11. The appellant is to pay the respondent’s costs of the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            23 July 2004

Counsel for the Applicant:	Mr Hassall
Solicitor for the Applicant:	S & T Lawyers
Counsel for the Respondent:	Ms Nomchong
Solicitor for the Respondent:	Pamela Coward & Associates
Date of Hearing:	25 June 2004
Date of Judgment:	25 June 2004