Proceedings in the Federal Magistrates Court
9 By his application to the Federal Magistrates Court, as amended by leave of that court on 20 July 2010, Mr Kowalski claimed the following relief on the grounds set out below:
Final orders sought by applicant.
1 An order that on the 26th of April 2010 the respondent deliberately and consciously breached s52, s 53 and s6(3)(a)(b) of the Trade Practices Act 1974 (Cth) and sections 56, 57 and 58 of the Fair Trading Act 1987 (SA) and the respondent is guilty of impropriety, misappropriation or theft, a fraud that was committed on the applicant and on various courts by the respondent, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s41 and s42 of the Legal Practitioners Act 1981, unconscionable conduct, conversion and a breach of good faith, therefore, the respondent is liable to pay, to the Applicant, the sum of $6,684.11 that the respondent illegally sued the applicant for, in the Adelaide Magistrates Court on 14 January 1993, plus compound interest since 26 July 1993, say $18,000.00.
2 An order that on the 26th of April 2010 the respondent deliberately and consciously breached section 58 of the Fair Trading Act 1987 (SA), therefore, pursuant to section 75 of the Fair Trading Act 1987 (SA) the respondent is liable to pay a penalty in the sum of $20,000.00.
3 In the alternative, an order that the respondent is guilty of impropriety, misappropriation or theft, a fraud that as committed on the applicant and on various courts by the respondent, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s41 and s42 of the Legal Practitioners Act 1981, unconscionable conduct, contravention of s56, s57 and s58 of the Fair Trading Act 1987 (SA), s52, s53 and s6(3)(a)(b) of the Trade Practices Act 1974 (Cth) and conversion, therefore, the respondent must be ordered to pay damages, to the applicant, under s82 and s87 of the Trade Practices Act, damages in the sum of $6,684.11 that the respondent illegally sued the applicant for, in the Adelaide Magistrates Court on 14 January 1993, plus compound interest since 26 July 1993, say $18,000.00.
4 An order for costs and disbursements of and incidental to this application on an indemnity basis.
5 Any other or further orders that the Honourable Court deems fit.
Grounds of application
1 On the 26th of April 2010 the respondent deliberately and consciously breached s52, s53 and s6(3)(a)(b) of the Trade Practices Act 1974 (Cth) and sections 56, 57 and 58 of the Fair Trading Act 1987 (SA) and the respondent is guilty of impropriety, misappropriation or theft, a fraud that was committed on the applicant and on various courts by the respondent, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s41 and s42 of the Legal Practitioners Act 1981, unconscionable conduct, conversion and a breach of good faith.
2 As a consequence of the first respondent's deliberate and conscious breach of s52, s53 and s6(3)(a)(b) of the Trade Practices Act 1974 (Cth) and sections 56, 57 and 58 of the Fair Trading Act 1987 (SA), on the 26th of April 2010, and as a consequence of the respondent's impropriety, misappropriation or theft, a fraud that was committed on the applicant and on various courts by the respondent, breach of trust, breach of fiduciary duty, breach of contract, breach of good faith, breach of s41 and s42 of the Legal Practitioners Act 1981 (SA), unconscionable conduct, conversion and a breach of good faith, the applicant has suffered financial loss.
[sic]
10 The effect of the amendment of the application, as indicated by underlining in the quoted extract, was to add reference to s 6(3)(b) of the Trade Practices Act 1974 (Cth) (TPA), as that Act was then known, and to allege that the fraud previously alleged "was committed on the applicant and various courts by the respondent".
11 Mr Bourne filed a response to the application as originally made. In that he denied that s 52 and 53 of the TPA applied to him as an individual. As a consequence, he denied that the Federal Magistrates Court had accrued jurisdiction to entertain a claim for relief under the Fair Trading Act 1987 (SA) (Fair Trading Act) or the Legal Practitioners Act. In the alternative, he denied breaching ss 56, 57 or 58 of the Fair Trading Act or ss 41 or 42 of the Legal Practitioners Act. He further pleaded that Mr Kowalski's application did not disclose a maintainable cause of action. Mr Bourne sought that the application be dismissed on a summary basis pursuant to s 17A of the Federal Magistrates Act 1999 (Cth) (Federal Magistrates Act). That provision is in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth).
12 By an application made returnable on 24 August 2010 Mr Kowalski sought to join "Credit Underwriters at Lloyds" and QBE Insurance (Australia) Ltd as additional respondents on the basis that he had recently become aware that they were Mr Bourne's indemnity insurers.
13 The selection of 24 August 2010 as a return date for this joinder application was so as to coincide with the date when the substantive application was listed for trial. That selection appears to have been made by Mr Kowalski.
14 The listing of the substantive application for trial on 24 August 2010 occurred at a directions hearing conducted in the Federal Magistrates Court on 20 July 2010. At that time, Mr Bourne's legal representative, who was by then aware of Mr Kowalski's intention to seek to amend the substantive application so as to include reference to s 6(3)(b) of the TPA, informed that court that Mr Bourne did not propose to pursue so much of the summary judgment application as relied upon an absence of jurisdiction, but still sought summary judgment on the basis of an absence of a maintainable cause of action. After hearing further from this representative and also, insofar as one can judge from the transcript, in circumstances of some difficulty from Mr Kowalski, the learned federal magistrate (Mr Lindsay FM) indicated that he did not propose then to hear any such summary judgment application, because the proceeding had been listed for directions only, but in any event proposed to list the matter for trial on 24 August 2010. Apart from granting leave to Mr Kowalski to amend the substantive application his Honour made further interlocutory directions, which included provision for the filing of an amended response by Mr Bourne. His Honour further signified to Mr Bourne's representative that it remained open to him to make an application for the dismissal of Mr Kowalski's application at the conclusion of the latter's evidentiary case at the trial.
15 On 24 August 2010 the learned federal magistrate first dealt with Mr Kowalski's joinder application. For reasons which he delivered orally that day, his Honour dismissed that application: Kowalski v Bourne [2010] FMCA 676. As his Honour understood the basis of the joinder application, it was that he could establish that Mr Bourne had been unwilling to seek indemnity and that it should thereby be inferred that this was an acknowledgement of his commission of conduct in contravention of the TPA on 26 April 2010. His Honour did not regard this as a basis for the joinder of either of the proposed additional respondents and therefore dismissed the application.
16 Upon this occurring, Mr Kowalski applied for Mr Lindsay FM to disqualify himself. His Honour dealt with that application forthwith. The basis upon which Mr Kowalski advanced his application was that his Honour had failed to understand what Mr Kowalski saw as the self-evident merit of his joinder application. Again for reasons which he delivered orally, his Honour dismissed that application: Kowalski v Bourne (No 2) [2010] FMCA 677. In so doing, his Honour noted (and it was the case) that no element of his ruling had involved having to consider any aspect of Mr Kowalski's credibility. His Honour referred to Livesey v NSW Bar Association (1983) 151 CLR 288 , to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and to what he described as a useful summary of the authorities by Brereton J in the New South Wales Supreme Court in British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109. He described the test as whether "a reasonably informed layman would come to the view, if observing the proceedings this morning, that I was unable of bringing a fair and impartial mind to bear upon the adjudication of a dispute before me". This he described as a "might" test.
17 The learned federal magistrate having declined to disqualify himself, the trial of Mr Kowalski's substantive application then commenced. In the course of Mr Kowalski's opening of his case he made reference to a request which he had made on 10 August 2010 for the costs the subject of the contentious correspondence earlier that year to be taxed. The learned federal magistrate presumed that the request for taxation had been made of the Supreme Court. Mr Kowalski applied for the trial to be adjourned pending the determination of that request for taxation. Once more for reasons which he delivered orally, his Honour refused that adjournment request: Kowalski v Bourne (No 3) [2010] FMCA 678. In so doing, his Honour accepted that there was no time limit for the taxation of costs and acknowledged the possibility that costs might be taxed for a lesser amount than that in respect of which judgment had been obtained against Mr Kowalski. He then observed that he was unable to apprehend, and Mr Kowalski was unable to identify, how the outcome of the taxation might have any bearing on whether Mr Bourne's conduct on 26 April 2010 was in contravention of the TPA.
18 The trial of the substantive application then continued. Mr Kowalski signified that he did not propose to give oral evidence himself but that he intended to call Mr Bourne to give oral evidence. The learned federal magistrate also understood Mr Kowalski to be relying upon certain affidavits sworn by him, particularly upon his affidavits of 28 April 2010 and 21 May 2010 (including their exhibits). One of the exhibits to the latter affidavit was the proposed amended application in respect of which leave to amend came to be granted in July. Mr Bourne's representative informed the court that Mr Kowalski was not required for cross-examination upon his affidavits. Mr Kowalski also made reference to responses which Mr Bourne had made to a notice to admit facts. He sought to tender these although his Honour informed him that this was not necessary as he regarded them as a pleading.
19 Mr Kowalski also called for the production of documents by Mr Bourne pursuant to a notice to produce which he had delivered. The documents sought included the file of Stanley & Partners relative to that firm's acting for him and a taxed bill of costs, including an allocatur, ie the formal certification of the amount of costs as taxed. No documents were produced. The explanation given by Mr Bourne's representative was that the firm had long been dissolved and files destroyed. In proffering that explanation he also admitted that no allocatur had been issued in respect of the costs in question.
20 Such preliminaries concluded, Mr Kowalski then called Mr Bourne to give evidence in chief. Mr Bourne did so in compliance with a subpoena which had been issued at Mr Kowalski's behest. That examination in chief commenced with some questions concerning indemnity insurance cover and the long concluded litigation in the District Court and the Industrial Court in respect of injuries allegedly suffered by Mr Kowalski. The following exchange then occurred. Though lengthy, I set it out in full because of the relevance which it has to the grounds of appeal. Reading the exchange also gives one the flavour of the circumstances in which the learned federal magistrate was required to discharge his judicial duties that day:
HIS HONOUR: What's the relevance of this, Mr Kowalski? What's the relevance of these matters you are asking about? To the events of 26 April 2010. You see, this - what's before me today isn't your application for a refund of money paid to by Mr Bourne; in other words, to scrutinise events going back to 1991 to 1993. This is your application to have Mr Bourne dealt with for his conduct on 26 April 2010. So what have these questions got to do with advancing your case about that?
MR KOWALSKI: How can I prove my case against them if I don't inform you of the background?
HIS HONOUR: No. You opened on that and I didn't understand that to be controversial.
MR KOWALSKI: No. No. Hang on. Hang on. Again, we have got interruptions. You are trying to tell me how to run my case.
HIS HONOUR: No. I am running my court.
MR KOWALSKI: Fine. You're allowed to.
HIS HONOUR: And you will follow my directions in relation to how my - - -
MR KOWALSKI: But in equity - in equity - - -
HIS HONOUR: Don't speak over me, Mr Kowalski.
MR KOWALSKI: - - - - you must give each party an equal opportunity.
HIS HONOUR: Well, I am asking you to tell me how these questions you are asking Mr Bourne are relevant.
MR KOWALSKI: They're relevant to the issue of whether my letter to him accusing him of obtaining the money by fraud was correct or not.
HIS HONOUR: But how does that assist you?
MR KOWALSKI: We've got a party/party costs consent to judgment which was accepted. So Mr Bourne's party/party costs should have been claimed from Mitsubishi, not from me. I know how the system works. Party/party costs from Mitsubishi, not from me.
MR CAMATTA: Your Honour, this is irrelevant to the issue. These documents have been acknowledged. They're not contested. The documents speak for themselves. Mr Bourne has admitted to most of these documents.
MR KOWALSKI: Where?
MR CAMATTA: In his notice to admit.
MR KOWALSKI: Where? You show me where.
MR CAMATTA: And it is not contested, sir, that these documents are true documents.
HIS HONOUR: I didn't think it was controversial.
MR KOWALSKI: Hang on - - -
HIS HONOUR: Anyway, look, you ask your next question, Mr Kowalski.
MR KOWALSKI: Okay. Now, you, on 4 January - on page 9? - - - Yes.
Okay. Now, you wrote to me and said that you have filed an application for compensation in the Industrial Court.
HIS HONOUR: I won't permit that question; it is not relevant to the matter before me.
MR KOWALSKI: It's his credibility.
MR CAMATTA: No. No. It's not credibility. It's relevance.
MR KOWALSKI: Stop protecting him. Stop protecting him.
HIS HONOUR: What's your next question, Mr Kowalski.
MR KOWALSKI:
We suggest that we now file an application for compensation in the Industrial Court.
Did you file?
HIS HONOUR: No. I won't permit that question.
MR CAMATTA: No, your Honour, these are irrelevant. This is irrelevant to the matter.
HIS HONOUR: Yes. Well, I am not permitting that question; it is not relevant.
MR KOWALSKI: Did you file an application in the Industrial Court?
HIS HONOUR: Mr Kowalski, I have not permitted that question. The witness - - -
MR KOWALSKI: Why not? On what grounds?
HIS HONOUR: The witness is excused from answering it; it is not relevant.
MR KOWALSKI: I have been through this nonsense before. Exactly the same. You don't want the truth. That's what it is. You are protecting him. I have been through this nonsense before.
HIS HONOUR: What's your next question?
MR KOWALSKI: You people are just the same.
HIS HONOUR: What's your next question, Mr Kowalski?
MR KOWALSKI: In your view, Industrial Court proceedings had certain advantages in relation to legal costs, Mr Bourne.
MR CAMATTA: Again, your Honour, he is agitating the same point.
MR KOWALSKI: Did they have advantages in regards to legal costs?
HIS HONOUR: No. The question is not permitted.
MR KOWALSKI: Now, on page 11, Mr - did you sent RJ Cole & Partners - hang on, did you send me a letter on 13 August '91 concerning your legal costs? - - - I don't know.
Can you read that letter there, the note, memo, dated 2nd? - - - Page 11 is a note which I understand to be a reference SJD would be Stephen Dowd.
Yes. And it says - telling him that Stanley & Partners will have their costs - bill of costs - tax their bill of costs? - - - Well, apparently that's something that he told you.
Okay. He told me? - - - Well, I assume that's what the note means.
Did you ring Mr Bourne on or around 2 September '91?
MR CAMATTA: Well, he is Mr Bourne, Mr Kowalski.
MR KOWALSKI: Did you - hang on, he had spoken to the accountant. They said they would get Tim Bourne to ring me. Did you ring Mr Dowd? - - - I don't know.
You don't know. Okay. Well, you didn't because Bourne had not rung me. Okay. Now, on page 12 did you provide an account to me via RJ Cole in the sum of $2302.02?
HIS HONOUR: No. I won't permit that question. It's not relevant.
MR KOWALSKI: Yes. It is. Totally relevant.
HIS HONOUR: What's your next question?
MR KOWALSKI: Totally relevant. Do you know you criminals you can go
MR CAMATTA: Your Honour. Your Honour.
MR KOWALSKI: - - - - and do it yourself. You can - I'm lodging a claim against you. I want a copy of that transcript. You can go and do what you like.
HIS HONOUR: What's your next question, Mr Kowalski.
MR KOWALSKI: You are going to hear about this; okay?
HIS HONOUR: What's your next question?
MR KOWALSKI: Not relevant. You are despicable; okay.
HIS HONOUR: Right.
MR KOWALSKI: You just - you are not fit to be a magistrate. That's the most relevant question of the lot.
HIS HONOUR: Mr Bourne, could I ask you to leave the witness box? Certainly, your Honour.
THE WITNESS WITHDREW [12.33 pm]
MR KOWALSKI: You go and handle this all yourself, okay? I have got no faith in you. $2000 and he sues for six. He had no legal right to sue for more than the initial bill and you know that. What a waste of time this was and here I thought you might have changed your stripes. Until you are prepared to allow me to ask the questions in the way I wished, which you have got a legal obligation to do, you can hold this inquiry on your own. Okay. Disgusting, you people are. Now, I suppose the same will happen at 2.15, will it?
HIS HONOUR: Mr Kowalski - - -
MR KOWALSKI: The same will happen at 2.15?
HIS HONOUR: You just said to me in response to my indication to you that I wouldn't permit a question to be asked of Mr Bourne - you used this expression, that I was "despicable and that I am not fit to be a magistrate".
MR KOWALSKI: Yes.
HIS HONOUR: I regard those remarks as capable of constituting a contempt in the face of the court. My attitude to that though - it may be a matter about which I need to reflect, but I want to give you the opportunity to withdraw those remarks before you leave the court.
MR KOWALSKI: You allow me to ask - - -
HIS HONOUR: Do you want to take that opportunity or don't you? I'm giving you - - -
MR KOWALSKI: If they are - if they are insulting - - -
HIS HONOUR: I'm giving you - - -
MR KOWALSKI: - - - I withdraw them, but your - your - - -
HIS HONOUR: I'm giving you the opportunity to withdraw the remarks.
MR KOWALSKI: I said, if they are insulting, I withdraw them.
HIS HONOUR: No, that's not - that's conditional. I'm indicating to you - - -
MR KOWALSKI: No. If you find that they are insulting, I withdraw them. I don't find them insulting. You are perverting the course of justice by refusing to allow me to ask Mr Bourne relevant questions. That's the whole basis of the claim. He wasn't allowed to charge more than the $2000.
HIS HONOUR: Right. Thank you. Could Mr Bourne return
MR KOWALSKI: The Supreme Court says that; everybody says that.
HIS HONOUR: Could Mr Bourne return to the witness box.
MR KOWALSKI: No, I'm not going any further at the moment; I'm too upset about this. It's no good putting me under all this stress - - -
HIS HONOUR: So Mr Bourne doesn't have to return to the witness box.
MR KOWALSKI: I'm going to see a doctor, getting a certificate.
HIS HONOUR: This is your opportunity to continue with cross-examination, provided you ask relevant questions.
MR KOWALSKI: I'm going to see a doctor, get a certificate. I don't have to put up with stuff like you - you carry on.
21 After stating that "I don't have to put up with stuff like you - you carry on", Mr Kowalski left the courtroom. The learned federal magistrate then asked Mr Bourne's legal representative, "What should we do in light of this?". The submission in response was that it looked like Mr Kowalski had abandoned the proceeding. His Honour allowed that it looked as if this is what had happened. Mr Bourne's legal representative then applied for the proceeding to be struck out with costs. The learned federal magistrate did not forthwith deal with that application. Instead he observed that Mr Kowalski had indicated to him in the past that he suffered from some albeit unspecified psychiatric condition and that the proceedings had reached a "stressful point". In the result, his Honour indicated that, without reaching any concluded view as to the disposition of the case, he would adjourn and then resume at 2:15pm. It was then (12:41pm) shortly before the court would have adjourned for lunch in the ordinary course of events (12:45pm). While the transcript does not record the precise time when Mr Kowalski left it must have been, judging by the exchange that occurred thereafter, about 12:36pm.
22 Upon the court resuming at the appointed time after the luncheon adjournment, Mr Kowalski remained absent. After receiving further submissions from Mr Bourne's legal representative, the learned federal magistrate decided to deal with Mr Kowalski's claim on its merits, ie on the evidence, affidavit and otherwise, which he had adduced prior to his sudden departure. For reasons which he then delivered orally, he dismissed Mr Kowalski's application with costs: Kowalski v Bourne (No 4) [2010] FMCA 679.
23 The essence of the learned Federal Magistrate's reasons for judgment is contained in the following excerpt (at [12]-[13]):
12. He consented to the judgment. Some months later he made payment in relation to the judgment. But whatever the merits of Mr Kowalski's complaints in relation to the entry of the judgment, and the request for the payment of the money, and the payment of the money that was extracted therefrom, they are not matters that ground any kind of application, or ground any kind of breach of these provisions of the Trade Practices Act or of the provisions of the Fair Trading Act, even if I were persuaded that it was appropriate to exercise the accrued jurisdiction of the Court.
13. And I am making that finding upon the basis of an acceptance of all of the material upon which Mr Kowalski relies. He indicated to me an intention not to give any oral evidence in addition to that which was to be found in his affidavits upon which he relied. True it is that I have not had the balance of Mr Bourne's evidence. Mr Kowalski abandoned his examination at a point in it when he was having difficulty in persuading me of the relevance of any of the questions he was putting to Mr Bourne. The questions were irrelevant. They related to these events circa 1993, but these were events that were not disputed.
His Honour described Mr Kowalski's claims as "far fetched".
24 Against this background, Mr Kowalski has appealed to this Court against the judgment below. The following are the grounds of appeal:
1 Federal Magistrate Lindsay erred in law because he refused to disqualify himself from any further involvement in Federal Court Action No. (P)ADG95/2010.
2 Federal Magistrate Lindsay was bias at law and he perverted the course of justice in the Federal Magistrates Court because he refused to grant the appellant leave to include Mr Bourne's Professional Indemnity Insurers, Certain Underwriters at Lloyds and QBE Insurance (Australia) limited as the second and the third respondent to Federal Magistrates Court action No. ADG95 of 2010.
3 Federal Magistrate Lindsay acted illegally, he was bias at law and he perverted the course of justice because he refused to allow the appellant to tender the appellant's Notice to admit facts, dated 23 July 2010 and Mr Bourne's Response to Notice to admit facts, dated 6 August 2010, as the respondent's evidence based on the false ground that they were not evidence but written submissions.
4 Federal Magistrate Lindsay acted illegally, he was bias at law and he perverted the course of justice because he refused to adjourn the proceedings until the appellant had had the opportunity to have Mr Bourne's legal costs and disbursements taxed by the Supreme Court of South Australia.
5 Federal Magistrate Lindsay was bias at law because he failed to adjourn the proceedings until after the appellant had recovered from his anxiety state that he had suffered during the proceedings before FM Lindsay on 24 August 2010, which was confirmed in Dr I Hamer's medical report dated 25 August 2010.
6 Federal Magistrate Lindsay erred in law, he was bias at law and he acted illegally and he attempted to pervert the course of justice because he refused to allow the appellant to examine his witness, Mr T Bourne, in the way he wished.
7 Federal Magistrate Lindsay erred in law because he summarily dismissed the appellant's application against Mr Bourne without allowing the appellant to put all of the evidence that he was going to put before him, therefore, he could not have made an informed or a judicial decision in respect to all of the factual disputes and the real issues that existed between the parties, which lead to him making a perverted and a fabricated decision because of the absence of hearing all of the evidence that the appellant was going to put before him. (The appellant relies upon the Federal Court decision in Hill v Lang [2010] FCA 629 (25 June 2010) to support his appeal against Lindsay FM's perverted decision.
8 Federal Magistrate Lindsay erred in law because he summarily dismissed the appellant's application against Mr Bourne without allowing the appellant to put all of the evidence that he was going to put before him and then he an order for costs against the appellant in the sum of $9,675.00, although, he could not have made an informed or a judicial decision in respect to all of the factual disputes and the real issues that existed between the parties.(The appellant relies upon the Federal Court decision in Hill v Lang [2010] FCA 629 (25 June 2010) to support his appeal against Lindsay FM's perverted decision to make an order for costs against the appellant.
8.1 Federal Magistrate Lindsay fabricated par 3 of his decision in Kowalski v Bourne (No. 4) [2010] FMCA 679 (24 August 2010), a copy of which the appellant obtained from the internet on 5 September 2010, on the grounds that FM Lindsay has falsely alleged that in par 3 that he has "… all the evidence that he was intending to rely upon save for the balance of the evidence that will arise from his examination of Mr Bourne, which is not occurring because he has left and, having been given an opportunity to see whether he had cooled down, as it were, he has not returned this afternoon do the reason I am not hearing the balance of that examination evidence is because Mr Kowalski is not here." because he did not have all of the evidence that the appellant was going to rely on and because on 24 August 2010 the appellant had informed the Chief Federal Magistrate John Pascoe AO that he had "… Walked out of the court to see a doctor…". (A copy of the appellant's letter to the Chief Federal Magistrate John Pascoe AO, dated 24 August 2010, and a copy of the file note of the telephone conversation between Mr T Bourne and Mr S Dowd, dated 3/9/91, that the appellant was going to examine Mr Bourne on, when Mr Bourne was in the witness box on 24 August 2010, is attached.)
8.2 Federal Magistrate Lindsay fabricated par 5 of his decision in Kowalski v Bourne (No. 4) [2010] FMCA 679 (24 August 2010), a copy of which the appellant obtained from the internet on 5 September 2010, on the grounds that FM Lindsay has falsely alleged that in par 5 that "For reasons that apparently have something to do with it coming to his attention that Mr Bourne fulfilled some duties in some public office - that is as best as I could understand the material that was before me - he decided to write to Mr Bourne about these matters on 25 April of this year…" on the grounds that the appellant had informed FM Lindsay, therefore, FM Lindsay was fully aware that the reason why the appellant had written to Mr Bourne on 25 April 2010 was because the appellant became aware that Mr Bourne is the Deputy President of the PAROLE BOARD, therefore, as he was making decisions on whether criminals should or should not be released from prison on parole he had a legal obligation to comply with the law himself.
8.3 Federal Magistrate Lindsay fabricated par 6 of his decision in Kowalski v Bourne (No. 4) [2010] FMCA 679 (24 August 2010), a copy of which the appellant obtained from the internet on 5 September 2010, on the grounds that FM Lindsay has falsely alleged that in par 6 that "… in my view, there is not merit in the application." on the grounds FM Lindsay did not have all of the evidence before him, therefore, FM Lindsay could not make an informed or a correct judicial decision in respect to the appellant's claim against Mr Bourne. The appellant repeats that Mr Bourne is the Deputy President of the PAROLE BOARD, therefore, as he was making decision on whether criminals should or should not be released from prison on parole he had a legal obligation to comply with the law himself.
8.4 Federal Magistrate Lindsay also fabricated par's 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18 of his decision in Kowalski v Bourne (No. 4) [2010] FMCA 679 (24 August 2010), a copy of which the appellant obtained from the internet on 5 September 2010, on the grounds that are found in par's 8.1, 8.2 and 8.3 above. The appellant repeats that Mr Bourne is the Deputy President of the PAROLE BOARD, therefore, as he was making decision on whether criminals should or should not be released from prison on parole he had a legal obligation to comply with the law himself.
[sic]
25 The grounds might be conveniently grouped into categories as follows:
(a) allegations of bias on the part of the learned federal magistrate, put in various ways;
(b) error in an alleged summary dismissal;
(c) alleged errors of fact, "fabrication", in the reasons for judgment.
The latter two categories of appeal grounds ought not be regarded as mutually exclusive of the first in the sense that they would seem to form part of a an alleged matrix in the conduct of the proceedings on which Mr Kowalski draws for his perception of bias.
26 I shall deal with the merits of each category in turn.
27 Mr Kowalski does not differentiate as between actual and apprehended bias in his grounds of appeal. There is no evidence which would even remotely sustain a finding of actual bias on the part of the learned federal magistrate. In Mr Kowalski, his Honour was faced with a litigant who in every sense of the word was querulous both procedurally and in respect of the perceived grievance that underpinned the application. The excerpt from the proceedings of 24 August 2010, quoted above, gives a fair indication of the very considerable difficulties that attended his Honour's discharge of his judicial responsibilities that day. Throughout the morning and in the face of increasingly provocative and disrespectful behaviour and intemperate language on the part of Mr Kowalski the learned federal magistrate behaved with considerable tact and restraint, demonstrably and persistently endeavouring to elicit from Mr Kowalski the nature of the case he sought to bring and the evidence upon which he proposed to rely. One cannot, in my opinion, read the transcript of that day without concluding that his Honour did his level best to ensure that Mr Kowalski had a fair opportunity to present his case. The conduct of the learned federal magistrate was the antithesis of actual bias.
28 In relation to whether, nonetheless, the events of the day give rise to an apprehension of bias, like French CJ in the recently decided British American Tobacco Australia Services Ltd v Laurie (2011) 85 ALJR 348 at [1], I commence by recalling the salutary reminder offered by Mason J on that subject in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
29 Mr Kowalski's submissions assimilated adverse rulings and substantive outcome with bias. This is not the test. Rather, the test is as stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[7]:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[Footnote references omitted; emphasis by italics in original.]
30 The learned federal magistrate correctly applied just such a test when deciding whether or not he ought to disqualify himself after ruling that the joinder of the indemnity insurers ought not to be allowed. Applying that test and recalling the reminder of Mason J to which I have referred, there was no reason in the circumstances to apprehend bias on the part of his Honour at the time when Mr Kowalski took objection to his continued dealing with the case. All that his Honour had done was to make a ruling adverse to Mr Kowalski and an amply justified one at that. There was no basis for the joinder of the indemnity insurers. The alleged conduct was that of Mr Bourne, not them. Whether or not that alleged conduct gave rise to indemnity as between Mr Bourne and his professional indemnity insurers was a matter between him and them and no business of Mr Kowalski's.
31 Mr Kowalski also alleges that that an apprehension of bias is to be found in the learned federal magistrate's failure to allow him to tender Mr Bourne's response (Appeal Book, Part C, p. 95) to a notice to admit facts (Appeal Book, Part C, p. 94) which he had filed and served. An examination of the transcript discloses that his Honour informed Mr Kowalski that there was no need to tender the response because it was a pleading document which was already on file. It is quite plain that, in so doing, the learned federal magistrate regarded the admissions in Mr Bourne's response as material upon which Mr Kowalski could rely without a need formally to tender the answers in that response to particular paragraphs in the notice to admit.
32 The Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules), by r 15.31, make similar provision to O 18 r 2 of the Federal Court Rules in respect of the admission of facts for the purposes of the proceeding only pursuant to a notice requesting the same served by one party on another party. While I would respectfully differ from the learned federal magistrate in describing either a notice to admit or a response to it as a pleading document, regarding that term as confined to a statement of claim, defence, reply or subsequent pleading (and their equivalents in the Federal Magistrates Court) that difference in characterisation is of no consequence in relation to whether Mr Kowalski's appeal ground has any merit. Read in context, it is plain from the exchange on this subject as between his Honour and Mr Kowalski that all that his Honour intended to convey by his description of the response as a pleading was that there was no need to tender the response to the notice to admit facts because the admissions in the response were already before him as a filed document upon which Mr Kowalski had signified that he wished to rely in his case. In substance, the correct position was conveyed, in my opinion. That was all that was necessary was for Mr Kowalski to signify that he relied on the admissions in the response to the notice. It was not necessary to mark the response as an exhibit in the same way as it would not have been necessary, in the case of what was truly a pleading, to mark admissions in a defence which had been filed and served as an exhibit. In this regard, the position might be contrasted with answers to interrogatories in those cases where the administration of interrogatories has been permitted. Conventionally, where it is desired to rely on an answer to an interrogatory, that interrogatory and answer are set out on a separate sheet of paper with the answer as so reproduced then being tendered. Sometimes, in my experience, even this conventional practice is dispensed with and it is regarded as sufficient for the party wishing to tender the same just to indicate to the court the paragraph numbers of the opposing party's answers to the interrogatories upon which reliance is placed.
33 The point of all this is that, however I might differ as to the characterisation of the notice and response with the learned federal magistrate, there is no error in substance in his Honour's not marking the response as an exhibit. It is plain he regarded the admissions in the response as part of the evidence in Mr Kowalski's case, as Mr Kowalski intended him to do. Equally plain is that there is nothing in so doing that could remotely give rise to an apprehension of bias on the part of the learned federal magistrate.
34 Yet further, it is equally plain that there is nothing to ground an apprehension of bias in his Honour's refusal to grant an adjournment so as to allow Mr Kowalski an opportunity to seek such relief as he could in the State court system in relation to the alleged failure of Stanley & Partners to tax that firm's bill of costs. In Mr Kowalski's mind that attempt and the present proceeding were inter-related. However that may be, that provided no occasion for requiring the latter to be adjourned. Rather, the learned federal magistrate was required to make a discretionary value judgment in respect of a procedural issue. In that regard, the trial of the substantive application had been fixed since 20 July 2010 to occur on 24 August 2010. It raised discrete issues in relation to whether Mr Bourne's correspondence constituted conduct in contravention of the TPA or the Fair Trading Act as alleged, and if so, whether the relief as claimed ought to be granted. There was no error of principle in his Honour's declining in these circumstances to grant an adjournment.
35 The reference to Stanley & Partners serves to remind about another feature of this proceeding which has thus far escaped highlighting. The bill of costs was not that of Mr Bourne personally but rather that of a firm of which he was once a member. That position is not altered by the fact that, within that firm, it was Mr Bourne who came to render professional services at one stage for Mr Kowalski. It was the firm, not Mr Bourne personally, which sued Mr Kowalski to judgment in respect of allegedly outstanding fees in the State Magistrates Court. It is just that Mr Bourne has become the subject of Mr Kowalski's grievances in relation to that judgment and this notwithstanding that he consented to entry of judgment and later paid in full the amount owing under it.
36 There was no error and there is no basis for an apprehension of bias in the learned federal magistrate's recording his understanding that the occasion for Mr Kowalski's grievance to manifest itself in this proceeding was it coming to his attention that Mr Bourne held an appointment with the State Parole Board. Mr Kowalski said as much to his Honour in the course of proceedings on 24 August 2010 (Appeal Book, Part C, p 122, lines 40 to 45).
37 Mr Kowalski is in error in asserting in his notice of appeal that his proceeding was dealt with summarily. It was not. It was set down for trial and its merits were determined at the trial by the judgment given. Mr Kowalski's reliance upon Hill v Lang [2010] FCA 629 is misplaced. In that case, the Federal Magistrates Court had indeed determined a case summarily, without trial, in reliance on s 17A of the Federal Magistrates Act. On appeal, that manner of determination of the case was regarded as unwarranted as there were a number of evidentiary controversies on the evidence before the court which could not be resolved summarily.
38 In the present case, the Federal Magistrates Court did not act under s 17A when giving judgment. Instead, Mr Kowalski was afforded an opportunity to be heard on the day appointed for trial. The extent to which he availed himself of that opportunity was a matter for him. His conduct in calling the respondent, Mr Bourne, to give evidence in chief was, to say the least, unorthodox. Mr Kowalski seems from the conduct of that examination to have regarded it as a licence to conduct an inquisition of Mr Bourne in such manner and on such subjects as he chose. Of course it was no such thing. A study of the transcript discloses that the learned federal magistrate did his best to ensure that only relevant questions were asked. Mr Kowalski, in turn, seems, increasingly, to have resented that perfectly normal and appropriate conduct on his Honour's part. That resentment ultimately manifested itself in a "walk out" by Mr Kowalski. A study of the transcript also discloses that, at the time when he chose, peremptorily to depart, Mr Kowalski was aware that the afternoon sittings of the court would resume at 2:15pm.
39 When Mr Kowalski left the course adopted by the learned federal magistrate was again one of restraint. Instead of dealing then and there with an application for judgment he waited until court resumed for the afternoon. He then dealt with Mr Kowalski's substantive application on its merits taking account of such evidence as he had led prior to his abrupt departure. By that stage, Mr Kowalski had identified all of the evidence upon which he proposed to rely. His conduct in the course of examining Mr Bourne justified the learned federal magistrate's direction to Mr Bourne that he leave the witness box. By his conduct, Mr Kowalski abandoned any further examination of Mr Bourne. That abandonment meant that all of the evidence in Mr Kowalski's case was before the court by the time when he left.
40 Taking that evidence at its highest, his Honour determined, unremarkably, that no contravention of s 52 or s 53 of the TPA or equivalent provisions in the Fair Trading Act had been established. Whether such a contravention had occurred was to be judged objectively, having regard to the language employed in the repository of the alleged contravening conduct, Mr Bourne's letter of 26 April 2010. Mr Bourne's choice of the word "ridiculous" was an apt description of the allegation which Mr Kowalski had made, especially when one recalls that Mr Kowalski had consented to the entry of judgment and that he later applied, unsuccessfully, to set it aside (of which more below). His further statement that Mr Kowalski's letter under reply had been sent to cause money to be paid to him to avoid the embarrassment of that letter being sent to various persons was a reasonable way to characterise that letter, although perhaps not the only way.
41 On the hearing of the appeal Mr Kowalski also submitted that he was entitled to judgment in this favour in the court below on the basis that, after he amended his application by leave Mr Bourne did not file an amended response. All that the amendment made by Mr Kowalski did was to make explicit how he alleged that the TPA applied to Mr Bourne as an individual. Mr Bourne had already also joined issue in his original response as to whether, in any event, he had contravened the TPA or the Fair Trading Act as alleged. It would have been perverse for the learned federal magistrate to have given judgment in default against Mr Bourne.
42 When, upon resumption of the trial after the luncheon adjournment, Mr Kowalski failed to return the learned federal magistrate could have decided, notwithstanding the request of Mr Bourne's legal representative to proceed to judgment, to adjourn the trial. He was not though, obliged to do this. Rule 13.03C(1) of the Federal Magistrates Court Rules gave a number of choices to his Honour. Those choices, which are not expressed necessarily to be mutually exclusive one of the other, were these:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c) if the absent party is an applicant - dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross claim - dismiss the interlocutory application or cross claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
In addition, by virtue of r 13.03C(2), the learned federal magistrate was entitled to make any of the orders in the event of default for which r 13.03B (1), (2) or (4) provide, or make any other order, or give any directions, and specify any consequences for non compliance with the order, that his Honour thought just. In that ultimately open-ended quality, r 13.03C conforms with the flexible notion of a procedural fairness obligation the content of which may vary according to the circumstances of the particular case.
43 Rule 13.03C applies "if a party to a proceeding is absent from a hearing". It is not only when a party fails to appear when a hearing in a proceeding is called on that the rule will apply. The rule applies at any time when during the course of a hearing a party is absent. A party will not be absent if that party appears by counsel or solicitor and even though that party is not physically present in court. Here though Mr Kowalski was acting for himself.
44 His Honour did announce in the course of the hearing that he had a recollection that Mr Kowalski had referred in the past to having a medical condition but there was then no medical evidence before him that Mr Kowalski was presently under treatment, much less that he was incapable of conducting his own affairs, including his litigious business. A "walk out" is not, in itself, a means of precipitating an adjournment.
45 Like all of those who exercise the judicial power of the Commonwealth, the learned federal magistrate had an obligation in the exercise of that power to afford procedural fairness where the circumstances so required. It is certainly possible to envisage circumstances where it would violate that obligation to refuse a request to adjourn a trial in the case of a supervening illness of a litigant in person or a key witness; see, as to the latter, by way of example, Rose v Humbles [1970] 1 WLR 1061 at 1071 (Buckley J), affirmed in this regard on appeal, Rose v Humbles [1972] 1 WLR 33. Here, though Mr Kowalski mentioned that he was "going to see a doctor, getting a certificate", he made no request of the learned federal magistrate to adjourn the trial because of a medical condition. To the contrary, he stated, "you carry on".
46 It is also possible to envisage circumstances where seemingly bizarre behaviour in the face of the court on the part of a litigant personally conducting his case might dictate that a proceeding should be adjourned, even though that party has not requested the same. Mental incapacity on the part of a plaintiff or applicant which supervenes after the institution of a proceeding is not unknown. In those circumstances, an order granting leave to amend ought to be sought so that the proceeding could be continued by a litigation guardian who had filed the requisite consent: Martin v Azzopardi (1973) 20 FLR 345 at 347 (Fox J). One of the occasions under r 11.08(1) of the Federal Magistrates Court Rules for the appointment by the court of a litigation guardian is where a person is not capable of adequately conducting a proceeding. Such an order might even be made of the court's own motion: r 11.11 Federal Magistrates Court Rules. A judgment obtained in a proceeding continued against such a person would not be a nullity: R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VR 445 at 447 (Newton J); but it would not bind that person unless and until the position was regularised by court order: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 83-84 per Latham CJ, at 85 per Rich J and at 113-114 per Williams J.
47 It is not necessary for the purposes of deciding this case to determine whether, in conjunction with an order for adjournment in the circumstances mentioned in the preceding paragraph, the Federal Magistrates Court might additionally order that the litigant concerned be medically examined by a practitioner acting on behalf of and reporting only to the court. In Queensland, McPherson J opined that the Supreme Court of that State as the inheritor of such a power possessed in the United Kingdom by the Lord Chancellor, might order such an examination: Re Magavalis [1983] 1 Qd R 59 at 63-64. Arguably, the position with respect to the South Australian Court would be no different as that court, too, from the moment of its establishment, possessed all the common law, equitable and probate jurisdiction of the courts at Westminster: 7 Will IV no. 5 (SA) (Ordinance No. 5 of 1837, An Act for the Establishment of a Court to be called the Supreme Court of the Province of South Australia), especially s 8.
48 In this regard, the position with respect to the Federal Magistrates Court is different in terms of establishment but may not, in my opinion, be different in terms of end result. Like this Court, the Federal Magistrates Court owes its existence to s 71 of the Constitution and to an Act passed pursuant to that constitutional authority by which it was established, in that court's case, the Federal Magistrates Act. Also like this Court and unlike a State Supreme Court such as that of Queensland or South Australia, the pervasive general jurisdiction of the kind possessed by the courts at Westminster could not be and has not been conferred on the Federal Magistrates Court. Rather, the extent of jurisdiction of the Federal Magistrates Court is as defined by Commonwealth legislation enacted in conformity with s 77(i) of the Constitution. In relation to matters in which it has jurisdiction, the Federal Magistrates Court has power to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate - s 15 of the Federal Magistrates Act.
That section provides a source of power only to the extent to which an order can be seen to be "appropriate" to be made by that court in the exercise of its jurisdiction. As presently advised and in the singular circumstances described, an order for medical examination would, in my opinion, be authorised by this section.
49 It is though, as I have stated, unnecessary to reach a concluded view on this subject. That is because the evidence does not establish that the behaviour he exhibited on 24 August 2010 Mr Kowalski was a manifestation of such mental incapacity as to render him incapable of conducting a proceeding.
50 On the hearing of the appeal, Mr Kowalski tendered a copy of a medical certificate dated 25 August 2010 from a general practitioner which recorded that he suffers from known depression and anxiety. The general practitioner also certified that Mr Kowalski had attended at his rooms "today suffering from an anxiety state which is the reason why he was unable to return to court yesterday 24.08.2010". That evidence, while it went some way to explaining Mr Kowalski's behaviour, did not demonstrate that he was that day suffering from mental incapacity. In other words, there is no proof that Mr Kowalski's parting statement to the court, "You carry on" was not the statement of a person capable of conducting his litigious affairs.
51 I do not therefore see the case as one where his Honour denied Mr Kowalski procedural fairness by proceeding to determine the case on its merits on the evidence then to hand. Nor, in the circumstances, did so proceeding give rise to any reasonable apprehension of bias.
52 So much of Mr Kowalski's grounds of appeal as allege that the learned federal magistrate "fabricated" particular paragraphs of his reasons for judgment are nothing more than baseless allegations cast in scandalous language. In fairness to Mr Bourne, the following should be recorded:
(a) on 7 April 1995 an application in the State Magistrates Court by Mr Kowalski to set aside the judgment obtained against him by Stanley and Partners was dismissed;
(b) on 17 November 1995, for reasons published on 27 November 1995, a further application to that court by Mr Kowalski in relation to the matter, this time seeking orders under the Legal Practitioners Act was dismissed;
(c) a later complaint in relation to the matter about Mr Bourne made by Mr Kowalski to the South Australian Legal Practitioners Board was dismissed, as was a charged laid before the Legal Practitioners Disciplinary Tribunal.
53 In dismissing Mr Kowalski's application in November 1995 Mr Millard SM concluded that there was no evidence at the time of the institution of the proceedings in the State Magistrates Court between Stanley and Partners and Mr Kowalski (Action No 788 of 1993) that any request had been made of that firm pursuant to s 42(1) of the Legal Practitioners Act to tax their bill of costs. His Worship concluded that that firm had been "entitled to proceed to issue these proceedings and once judgment had been entered, the issue of quantum and liability was resolved thus there was no basis upon which this Court could usefully order a stay of proceedings and costs. This Court deals only with the issue of liability for professional services but must also fix quantum of the fees but it has no jurisdiction to tax costs in the event of a dispute as to quantum. That jurisdiction lies exclusively with the Supreme Court pursuant to s 42 of the Legal Practitioners Act."
54 It is not for me, nor was it for the Federal Magistrates Court, to sit on appeal from that long ago judgment in a State court. What is for me, as it was for the Federal Magistrates Court, is to determine whether there was any merit in the contraventions of the TPA and the Fair Trading Act alleged. Especially in light of the outcomes in the State forums, there was none. This was a hopeless case which a person, properly advised, should never have commenced. It was brought in defiance of conclusions already finally reached in the State Magistrates Court. There was never any merit in any of the grounds of appeal.
55 For completeness, I should record that, in the course of the hearing and having regard to his reference to anxiety and to the evidence in and course of proceedings in this Court and below, which included reference to his being declared vexatious by the Supreme Court of South Australia in respect of further proceedings in the State courts, I did raise with Mr Kowalski whether he thought it might be in his interests to apply to the South Australian Guardianship Board for an administration order in relation to his litigious business. The present case amply demonstrates an obsessive trait in Mr Kowalski's character but I did not reach the view that he was incapable of conducting the appeal.
56 The appeal should be dismissed. Further, given the appeal's complete absence of merit in its grounds, Mr Bourne should have his costs on an indemnity basis: Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 at 233 (Item 5).
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.