Soden v Kowalski

[2010] FCA 963

FEDERAL COURT OF AUSTRALIA

Soden v Kowalski [2010] FCA 963

Citation:		Soden v Kowalski [2010] FCA 963
Parties:		WARWICK SODEN v KAZIMIR KOWALSKI MITSUBISHI MOTORS AUSTRALIA LIMITED, MIMAL STAFF SUPERANNUATION FUND PTY LTD and AMP SUPERANNUATION LTD v KAZIMIR KOWALSKI
File number(s):		SAD 75 of 2010 SAD 96 of 2010
Judge:		STONE J
Date of judgment:		26 August 2010
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 21 and 23 Federal Court Rules, Orders 21 and 35
Cases cited:		Dietrich v R (1992) 109 ALR 385
Date of hearing:	26 August 2010
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Applicants in SAD 75 of 2010:	T Duggan
Solicitor for the Applicants in SAD 75 of 2010:	O'Loughlins Lawyers
Representing the Respondent in SAD 75 of 2010 and  SAD 96 of 2010:	The respondent appeared in person
Solicitor for the Applicants in SAD 96 of 2010:	Thomsons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 75 of 2010

BETWEEN:	WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA) Applicant
AND	KAZIMIR KOWALSKI Respondent

JUDGE:	STONE J
DATE OF ORDER:	26 AUGUST 2010
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The notice of motion filed on 20 July 2010 be dismissed.

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 96 of 2010

BETWEEN:

MITSUBISHI MOTORS AUSTRALIA LIMITED
First Applicant

MMAL STAFF SUPERANNUATION FUND PTY LTD
Second Applicant

AMP SUPERANNUATION LTD
Third Applicant

AND:

KAZIMIR KOWALSKI
Respondent

JUDGE:	STONE J
DATE OF ORDER:	26 AUGUST 2010
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The notice of motion filed on 20 July 2010 be dismissed.

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 75 of 2010

BETWEEN:	WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA) Applicant
AND:	KAZIMIR KOWALSKI Respondent

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 96 of 2010

BETWEEN:

MITSUBISHI MOTORS AUSTRALIA LIMITED
First Applicant

MMAL STAFF SUPERANNUATION FUND PTY LTD
Second Applicant

AMP SUPERANNUATION LTD
Third Applicant

AND:

KAZIMIR KOWALSKI
Respondent

REASONS FOR JUDGMENT

1. By notices of motion filed on 20 July 2010, the respondent in these two proceedings seeks orders whereby the two proceedings would be stayed until he has obtained legal representation.  Mr Kowalski filed written submissions in support of his application and made oral submissions before me this morning.  The gist of those submissions is that Mr Kowalski feels that he is not listened to because he is not a lawyer.  He also made some submissions as to his inability, by not having legal training, to meet technical objections made by other parties to the proceeding or rulings from the Bench.

2. Mr Kowalski, in support of his submissions, referred to his failure to succeed in numerous other applications before this Court and which form the basis for the application to have him declared a vexatious litigant.  Almost all of his arguments were directed to his defence in the primary proceedings, and the merits of the proceedings in which he was not successful, but which in Mr Kowalski’s view, he should have been successful.  The long discussion of his merits that should have resulted in success in those proceedings seemed to be based on a view that if only his arguments could have been presented more clearly and more persuasively, then they would have succeeded.

3. There does not seem to be, in Mr Kowalski’s view, any possibility that some of his submissions, or the claims that he has made, may not be legally sustainable.  I accept that Mr Kowalski is convinced of the truth and justice of his cause.  In fact, so great is his certainty that he is equally convinced that anyone who comes to a different conclusion is not only wrong, but it would seem, he also takes the view that a contrary opinion could only be the result of dishonesty at some stage in the proceedings.  I have listened to him at length.  While his arguments do not have the sophistication of a lawyer, they are certainly not incoherent and are presented with conviction and passion.

4. I was able to understand the points Mr Kowalski made and, in my view, he is capable of representing himself.  Mr Kowalski referred to the decision of the High Court in Dietrich v R (1992) 109 ALR 385, on which he relied to support a submission that in the circumstances of him being unable to obtain a fair trial, he was entitled to a stay until he could obtain legal representation.

5. A number of responses may be made to this submission.  First, Dietrich v R is a case which deals with the power of a court to stay a proceeding pending the obtaining of legal representation in a serious criminal proceeding.  This is not a criminal trial in respect of a serious criminal offence and, therefore, at one level, Dietrich would seem to have nothing to say about the matter.  While it is true that Dietrich does not discuss or, indeed, rule out the possibility that a court may have a similar power in respect of civil proceedings   In my view the power is better understood as being the power of the Court to control its own processes and, therefore, to do whatever is necessary to ensure that any trial before the court is a fair trial.

6. The concept of a fair trial is a concept which embraces the rights and interests of all parties to litigation.  Inevitably, it requires that those interests be balanced.  Whether a litigant in person can do as good a job as a lawyer in presenting arguments is not determinative of whether a trial would be fair.  The interests of both applicant and respondent have to be taken into account and, in my view, the question of whether Mr Kowalski should be restrained from bringing further proceedings is a sufficiently serious question and it should be determined even, regrettably, though Mr Kowalski has not been able to obtain legal assistance.  I stress that it is an important question to be determined not only from the point of view of the respondents to the proceedings instigated by Mr Kowalski, but also for Mr Kowalski himself.

7. At the moment, there are a large number of decisions in which he has been unsuccessful.  If he has been unfairly unsuccessful in those proceedings because of matters not brought before the Court, for instance, then it is important that his interests be vindicated.  They cannot be vindicated, assuming those interests do exist, by an order that the primary proceedings in both of the matters before me today be stayed. There is no evidence that Mr Kowalski has any realistic chance of obtaining legal representation and any stay made in the terms Mr Kowalski seeks might well turn out to be permanent.  This is not a satisfactory position for any of the parties before the Court today.  In my view, the application in the notice of motion in both these proceedings should be dismissed.  The order of the Court is, the application made by way of notice of motion filed on 20 July 2010 be dismissed. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        9 September 2010