Kowalski v Layton

Case [2006] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

KOWALSKI v LAYTON

Judgment of The Honourable Justice Besanko

3 February 2006

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT

Notice for specific directions – respondent to appeal sought order that appeal be struck out – appellant prohibited from instituting proceedings without leave of Court pursuant to order made under Supreme Court Act 1935, s 39 – held, allowing application – appeal instituted without leave of Court – appeal dismissed.

Application for disqualification – two grounds – first, his Honour member of Court that had decided question adverse to appellant – secondly, his Honour and respondent now members of same Court – held, dismissing application – first ground rejected on basis that Court had decided question of law only - second ground rejected on basis that, if for no other reason, principle of necessity applies.

Legal Practitioners Act 1981 s 86; Supreme Court Rules 1987 rr 3.01, 84.02, 97.11; Supreme Court Act 1935 ss 39, 130, referred to.
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; TKWJ v The Queen (2002) 212 CLR 124, considered.

KOWALSKI v LAYTON
[2006] SASC 28

Civil

  1. BESANKO J: The appellant, Mr Kazimir Kowalski, has purported to appeal to this Court from an order made by the Legal Practitioners Disciplinary Tribunal on 15 December 2005. The purported appeal is brought pursuant to s 86(1) of the Legal Practitioners Act 1981 (“LPA”).

  2. During 2005, the appellant laid charges before the Tribunal against the respondent, Ms R Layton QC, as her Honour then was.  The charges related to Ms Layton’s conduct as counsel for Mitsubishi Motors Australia Ltd (“MMAL”) and, in particular, her conduct in an action in this Court between MMAL and the appellant.  The action was heard by the Honourable Justice Bleby in February 2005.  The order of the Tribunal which is the subject of the appeal is that the charges laid by the appellant are vexatious and are dismissed.

  3. Ms Layton was appointed a judge of this Court on 2 March 2005.

  4. The respondent has issued a notice for specific directions, which is supported by an affidavit, seeking an order that the appeal be struck out on the basis that the appellant failed to obtain the leave of the Supreme Court before issuing the appeal. Two rules of court are referred to in the notice, and they are rr 3.01 and 97.11 of the Supreme Court Rules 1987 (“SCR”), which are in the following terms:

    3.01   Subject to Rule 2 except where the Court otherwise orders no breach of or non compliance with a Rule which does not arise out of disobedience or contumacy in relation to a prior order…

Continue reading Kowalski v Layton

Sign in free to access the full text

Details
AGLC
Kowalski v Layton [2006] SASC 28
Case
[2006] SASC 28
Decision Date

CaseChat Overview and Summary

The matter of Kowalski v Layton was heard by the Supreme Court of South Australia, wherein the appellant, Kowalski, challenged a decision made against them by the respondent, Layton. Kowalski sought to appeal a decision that had been rendered in the lower court, but the appeal was instituted without obtaining the necessary leave from the Supreme Court. The appellant also filed an application for disqualification against the judge presiding over the appeal, citing two grounds for disqualification. The first ground was based on the fact that the judge had previously been a member of the court that had decided a matter adversely to the appellant. The second ground was that the judge and the respondent were now members of the same court.

The legal issues that the court was required to decide in this case were whether the appeal had been properly instituted and whether the application for disqualification was valid. The court held that the appeal had not been instituted with the leave of the court, as required by the orders made by the Honourable Justice Bleby on 19 April 2005. The court also dismissed the application for disqualification, rejecting the first ground on the basis that the court had only decided a question of law, and rejecting the second ground on the basis that the principle of necessity applied.

The court's reasoning was that the remission of the fee payable for the notice of appeal did not constitute the granting of leave to institute the appeal, but rather, it was a separate matter concerning the remission of the fee due to the poverty of the party or for any other proper reason. The court concluded that the appeal had been instituted without the leave of the court, and it should therefore be dismissed. The court also noted that it would hear the parties on the question of costs.

Orders

Orders of the court

Full text does not contain this section.

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

On 23 December 2005, the appellant was advised by letter that the fee payable in relation to the notice of appeal had been remitted under s 130(2). That is not the granting of leave to institute the appeal within the terms of paragraph 1 of the order. It is quite a separate matter and relates to whether the fee payable should be remitted on account of the poverty of the party making the application or for any other proper reason. Conclusion The appeal has been instituted without the leave of the Court within the terms of paragraph 1 of the orders made by the Honourable Justice Bleby on 19 April 2005. In my opinion, it should be dismissed and I will so order. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.