Kowalski v Mitsubishi Motors Australia Ltd

the court 1 This is an application for leave to appeal from a judgment by a single judge of the Court, Besanko J, pronounced on 3 September 2009 in proceedings between Mr Kowalski (the applicant) and Mitsubishi Motors Australia Limited (Mitsubishi). Besanko J ordered: 1. The applicant's notices of motion dated 18 December 2008, 18 July 2009 and 4 August 2009 respectively, be dismissed. 2. The applicant's Amended Statement of Claim dated 30 November 2008 be struck out. 3. The applicant's proceeding be dismissed. 2 The applicant's Notice of Motion dated 18 December 2008 is set out in par [24] of these reasons. The Notice of Motion dated 18 July 2009 is an application by the applicant seeking various declarations in the proceedings. Besanko J held that, as declarations are a form of relief, they may only be made when an applicant establishes a cause of action, or an infringement of private rights. Besanko J held that, as the applicant could not establish a cause of action, a claim for declarations must fail. The Notice of Motion of 4 August 2009 is an application of the applicant that Besanko J disqualify himself for bias. 3 On 4 September 2009, the applicant filed a document entitled "Notice of Appeal", seeking to appeal from that decision. In par 3.1 of the "Notice of Appeal", the applicant sought: Leave to appeal against Justice Besanko's decision if it is an interlocutory decision. 4 Mitsubishi filed a Notice of Motion on 2 October 2009 seeking that the applicant's proceedings on the Notice of Appeal filed 4 September 2009 be dismissed as incompetent pursuant to O 52 r 18 of the Federal Court Rules,on the ground that the judgment appealed from is interlocutory and that, accordingly, leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Act). 5 That Notice of Motion also sought that, in respect of the "Notice of Appeal" filed on 4 September 2009, it be removed from the file pursuant to O 41 r 5 of the Federal Court Rules on the grounds that it contains scandalous matter, or alternatively, that the scandalous matter be struck out. 6 The applicant filed a Notice of Motion on 12 October 2009, in retaliation apparently to the Notice of Motion filed by Mitsubishi on 2 October 2009, seeking that that Notice of Motion be dismissed or set aside pursuant to O 52 r 18 of the Federal Court Rules on the grounds that the judgment appealed from was a final judgment, and therefore leave to appeal was not required, or alternatively, if the judgment was interlocutory, in par 3.1 of the applicant's Notice of Appeal dated 4 September 2009, the applicant had applied to the Full Court of the Federal Court for leave to appeal against the judgment. 7 It was also contended by the applicant in his Notice of Motion that his "Notice of Appeal" dated 4 September 2009 "does not contain any scandalous matter whatsoever". 8 On 9 November 2009, Mansfield J heard the Notice of Motion of Mitsubishi filed 2 October 2009, and the Notice of Motion of the applicant filed 12 October 2009, and ordered that in respect of the Notice of Motion of Mitsubishi of 2 October 2009: 2. On the Notice of Motion of the Respondent of 2 October 2009: (a) as to paragraph 1 of the Notice of Motion, the motion be referred to the Full Court, to be heard and determined at the same time as the "Notice of Appeal" [of] the Applicant; (b) as to paragraph 2 of the Notice of Motion, the words "he perverted the course of justice and" (or words to that effect) in paragraphs 2.1 to 2.17 and 4.1 to 4.20 of the "Notice of Appeal" be struck out. (c) The costs of the motion be referred to the Full Court for determination. 9 In respect of the Notice of Motion of the applicant of 12 October 2009, Mansfield J ordered that the motion be referred to the Full Court for determination to the extent necessary, and that the costs of the motion be reserved to the Full Court for determination. 10 Mansfield J also declined to grant leave to the applicant to appeal from the order concerning par 2 of Mitsubishi's Notice of Motion. 11 The decision of Besanko J to strike out the Amended Statement of Claim and dismiss the proceedings was an interlocutory decision: Re Luck (2003) 78 ALJR 177; [2003] HCA 70, and therefore leave to appeal is required pursuant to s 24(1A) of the Act. 12 The applicant seeks leave to appeal "if necessary" in his "Notice of Appeal". It is necessary. It is therefore appropriate to deal with the applicant's application for leave to appeal from the judgment of Besanko J of 3 September 2009. 13 Mitsubishi opposes the grant of leave, submitting that the decision of Besanko J to dismiss the proceedings is not attended with sufficient doubt to warrant the grant of leave: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. It was submitted that the Amended Statement of Claim contained bare assertions about alleged causes of action, but there was no pleading of material facts to allege any arguable cause of action and accordingly the pleading was required to be struck out pursuant to O 11 r 16 of the Federal Court Rules. 14 Order 11 r 16 provides: 16 Where a pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court; the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out. 15 Mitsubishi further submitted that there was no material before Besanko J, and none referred to in the appeal papers to raise any, or any sufficient doubt, that it was a proper exercise of Besanko J's discretion not to allow a further opportunity to re-plead, having regard to the interests of justice to both parties: Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951 at [94], [102] and [112]. Mitsubishi submitted that it would be futile to grant leave in those circumstances. 16 Mitsubishi further submitted that because the material before Besanko J and the Full Court discloses no arguable causes of action, even supposing some error by Besanko J, no substantial injustice would be occasioned if leave were to be refused. 17 Mitsubishi further indicated that the applicant has not sought to put before the Court any further proposed pleading which is said to cure the defects in the pleading before Besanko J. 18 Finally, Mitsubishi submitted that the refusal by Besanko J to disqualify himself was not attended with sufficient doubt to warrant a grant of leave. Accordingly, it was submitted that leave ought not be granted and the "appeal" should be dismissed as incompetent. 19 The applicant made two applications to Besanko J that his Honour disqualify himself. Mansfield J refused an application for leave to appeal from the refusal of the first application, on 3 February 2009. The applicant made a further application after the decision of Besanko J on Mitsubishi's motion for dismissal was reserved. 20 The applicant submitted that Besanko J gave judgment on Mitsubishi's motion to dismiss the proceedings before the applicant's application for leave to appeal from his Honour's refusal to disqualify himself from hearing Mitsubishi's motion could be heard. 21 The delivery of judgment by Besanko J in those circumstances discloses neither error nor any proper complaint of actual or apprehended bias. 22 The primary judge was not bound to await the outcome of the application for leave to appeal. The failure of a judge to disqualify himself or herself may be brought as a ground of appeal from the final orders of that judge. It is not ordinarily to be the subject of a separate application for leave to appeal, and the primary judge need not await the fate of any such application.