FEDERAL COURT OF AUSTRALIA

Kowalski v Domestic Violence Crisis Service [2003] FCA 1267

STAN LECH KOWALSKI v DOMESTIC VIOLENCE CRISIS SERVICE

A 18 OF 2003

STONE J

7 NOVEMBER 2003

CANBERRA

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.   Unless the appellant provides security for the costs of the respondent in the appeal in an amount of $5,000 in a form satisfactory to the Registrar on or before 8 December 2003, the appeal is to be stayed until further order.

2.   Subject to order 3, the costs order made in the Federal Magistrates Court on 20 June 2003 be stayed pending the outcome of the appeal in this proceeding.

3.   If security for costs is not provided in accordance with order 1, the costs that are the subject of the costs order made in the Federal Magistrates Court on 20 June 2003 be paid on or before 31 December 2003.

4.   The parties have liberty to apply on 48 hours’ notice.

5.   The appellant must pay the respondent’s costs of and incidental to the notices of motion of the appellant and the respondent and the application for leave to issue subpoenas.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     On 22 May 2003 in the Federal Magistrates Court, Driver FM dismissed the appellant’s application brought under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).  On 20 June 2002, following written submissions by both parties, his Honour ordered that the appellant pay the respondent’s costs of the application.  In his reasons for the costs order the learned Federal Magistrate noted that the appellant had filed an appeal against his dismissal of the application and, apparently in anticipation of the appellant filing an application for a stay of the costs order pending the resolution of the appeal, said that, in the circumstances, he would not impose a deadline for payment of costs.  In fact no such application was made until 5 November 2003 when the appellant filed a notice of motion seeking an order that the costs order be stayed. 

2                     Under cover of a letter dated 8 September 2003 the respondent’s solicitors sent an itemised account in respect of those costs to the appellant’s solicitors and requested advice as to the arrangements for payment.  The appellant’s solicitors responded that at the time of the order they were not acting for the appellant.  They said that the appellant had declined to instruct them in relation to the issue and that correspondence was to be sent to him personally.  Subsequent letters and telephone conversations concerning the costs issue appear to have yielded no response from the appellant.  On 3 November 2003 the respondent filed a notice of motion seeking orders in relation to the payment of its costs as well as security for the costs of the appeal.  The orders sought are set out in full below, at [19].

3                     The appellant also seeks leave to issue a number subpoenas seeking the production of various documents and requiring the attendance of certain persons to give evidence.  There are a number of formal deficiencies in the draft subpoenas put before me but, for reasons that will become apparent, it is not necessary for me to deal with those problems.  The appellant has admitted that his application for leave to issue is a precursor to an application under O 52 r 36 of the Federal Court Rules (‘Rules’) for the admission of further evidence on the appeal. 

Background

4                     This matter has a long and protracted history.  It has been the subject of extensive litigation between the parties before the Human Rights and Equal Opportunities Commission (‘HREOC’), in this Court and in the Federal Magistrates Court.  The background has been set out in some detail by Driver FM, [2003] FMCA 99 at [1] - [6], by Madgwick J, [2001] FCA 1082 at [3] - [7] and by Finn J, [1999] FCA 794.  I propose to give only a brief summary here. 

5                     On 6 February 1990 a domestic altercation occurred between the appellant and his then wife.  Police attended and referred the matter to the respondent.  Two of the respondent’s workers attended the appellant’s house where they interviewed his wife for about one and a half hours and then left, declining to interview the appellant.  Instead they gave him a Domestic Violence Crisis Service business card with their names on it and asked him to ring the next day for an appointment.

6                     In 1994 the appellant complained to the Australian Capital Territory Discrimination Commissioner, alleging that the respondent’s workers had discriminated against him on the basis of his gender.  The complaint was heard by HREOC which, on 20 January 1998, found that there had been no unlawful discrimination.  The appellant sought judicial review of that decision and, on 16 June 1999, Finn J set aside the decision and remitted the matter to HREOC; [1999] FCA 794.  Finn J’s decision was based upon HREOC’s failure to make a necessary determination on a factual issue, namely, the reason or reasons why the respondent’s workers decided to provide assistance to the appellant’s wife before providing assistance to the appellant. 

7                     Following the remittal, but before the re-hearing by HREOC, changes to the legislative scheme meant that the appellant was entitled to bring proceedings in this Court or the Federal Magistrates Court pursuant to s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).  The legislative changes and their effect were discussed by Madgwick J in Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082.  Mr Kowalski commenced proceedings in this Court and, on 8 February 2002, Finn J transferred the matter to the Federal Magistrates Court where, as indicated earlier, Driver FM dismissed the application and made the costs order referred to in [1] above.

subpoenas and further evidence

8                     On 16 October 2003 the Acting Chief Justice determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal in this matter should be heard by a single judge.  No date has yet been set for the hearing of the appeal.  As noted earlier the appellant seeks leave to issue the subpoenas as a precursor to an application to adduce further evidence at the hearing of the appeal.

9                     The requirement for leave to issue a subpoena under O 27 r 6(1) of the Rules enables the Court in its discretion to assess if a subpoena has a legitimate forensic purpose.  This supervisory role is especially important in the case of protracted litigation and where there is potential for a subpoena to amount to an abuse of process.  Where leave is sought for the purposes of assembling further evidence for an appeal it is proper that the Court considering the application for leave should make some assessment of the likelihood of such evidence being admitted on the appeal.  In such a case the legitimate forensic purpose of the subpoena is more or less commensurate with the likelihood of the evidence being admitted on appeal and with its potential to influence the outcome of the appeal. 

10                  The Court has a discretion to admit further evidence on the hearing of an appeal;  Federal Court of Australia Act 1976 (Cth) s 27.  The purpose of the discretion is to avoid a miscarriage of justice and it should be exercised only in exceptional circumstances;  Turner v Jupiters Management Limited [1989] 29 IR 276 at 277.  The considerations relevant to the Court’s exercise of its discretion to allow fresh evidence are well settled.  It must be reasonably clear that if the relevant evidence had been adduced at the trial a different result would be likely to have ensued; Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 at 444; see, however, the observations of Lockhart J in Florance v Andrew (1985) 58 ALR 377 at 381-382.  The Court must be satisfied that the failure to adduce the evidence at the trial did not result from a lack of reasonable diligence;  Orr v Holmes  (1948) 76 CLR 632 at 640.  I am not satisfied on either of these points in relation to the evidence that the appellant seeks to obtain by issue of the proposed subpoenas, and therefore I do not propose to give the appellant the leave he requests. 

11                  In the case of each of the subpoenas that the appellant seeks leave to issue I am satisfied that the evidence sought by the appellant was either before the Federal Magistrate or was available but not called for by the appellant.  There is no evidence that the appellant now seeks to obtain that could not have been obtained at first instance.  Moreover the appellant has given no satisfactory explanation of why it failed to obtain the evidence it did not have or to present the evidence that was available to the Court.  Mr Hassall, counsel for the appellant, did not appear for the appellant in earlier proceedings.  He appeared not to have been well briefed as to what had happened in those earlier proceedings and his submissions in support of the appellant’s application for leave were littered with admissions that on particular matters he was unable to assist the Court.  In considering the submissions he was able to make I shall deal briefly with each of the proposed subpoenas. 

Subpoena to produce addressed to the Chief Police Officer of the Australian Capital Territory

12                  The appellant seeks records relating to operations of the Australian Federal Police (‘AFP’) on the evening of 6 February 1990.  Before his submission on this subpoena proceeded to any extent I drew to the attention of Mr Hassall, counsel for the appellant, that a subpoena for production had been issued to the same addressee in the proceedings before Driver FM.  Although that subpoena requested different information the response from the AFP was to effect that the AFP had nothing to produce and that any files relating to the appellant had been destroyed.  The letter was produced at the hearing before Driver FM and shown to the appellant’s then counsel.  Mr Hassall was, it may safely be said, surprised by this information.  The Court was able to provide him with a copy of the subpoena and the answer to it.  Having considered these Mr Hassall did not press the subpoena.

Subpoena to produce addressed to Bill Redpath, solicitor for the respondent

13                  The draft subpoena requests the production of a number of original documents, including the respondent’s file for the appellant and his former wife and the telephone log of the respondent for the night of 6 February 1990.  All of these items were covered by a notice to produce that was issued in the proceedings before Driver FM.  All of the documents requested were taken to the hearing before Driver FM although, apparently, they were not all called upon.  Once again Mr Hassall appeared to be taken by surprise at this revelation.  In the circumstances he has little to say in support of the appellant’s application other than to press that the appellant requires the original phone log for a forensic expert to examine, apparently with a view to establishing its authenticity. 

14                  The telephone log was the subject of specific comment in the reasons of Driver FM at [14] and [30].  His Honour’s comments indicate that the original telephone log was an exhibit in the proceedings before him and that it was tendered by the respondent following the appellant’s tender of some AFP documents after the close of Mr Kowalski’s case.  His Honour noted that the log shows that Police Operations called the respondent at 10.15 on the evening of 6 February 1990.  In the comments column of the log the words, ‘crisis Julia Kowalski’ appear.  There was some doubt about whether elements of this comment were written at different times and it is clear from his Honour’s comments, at [31]-[32], that the issue of the reliability of the entry was raised at the trial and that, for this reason, the learned Federal Magistrate treated it with caution.  Although the original of the telephone log was produced rather late in the proceedings, in January 1990 a copy of it had been provided to the appellant’s then solicitors under cover of a letter from the respondent’s solicitors.  The appellant made no application at any stage of the proceedings in the Federal Magistrates Court or in earlier proceedings for the document to be subjected to forensic examination. 

Subpoena to give evidence addressed to Constable Perkins

15                  Constable Perkins (one of the Federal Police officers who attended the Kowalski home on the night of 6 February 1990) was available at the time of the hearing.  It appears that the appellant had made a forensic decision not to call him but had tendered a statement Constable Perkins had made for the proceedings.  The statement was not admitted because Constable Perkins had not been called and was not available for cross-examination.

Subpoena to give evidence addressed to Mark Kowalski

16                  This subpoena is addressed to the appellant’s son.  The transcript of his evidence in the HREOC proceeding was before Driver FM.  He was not called in the proceeding although he was available. 

Subpoena to give evidence addressed to Annie McLean

17                  Annie McLean was an employee of the respondent who had contact with the appellant on 7 February 2003.  Her statement was tendered in the proceeding before Driver FM and she was not called to give evidence. 

18                  As the above analysis shows the appellant has not been able to demonstrate that the evidence he now seeks was not reasonably available at the trial.  Moreover he has not been able to point to any way in which this additional evidence would have affected the outcome in the Federal Magistrates Court had it been led.  As I see it the appellant is seeking a second trial.  In the circumstances I am satisfied that the subpoenas that the appellant wishes to issue have no legitimate forensic purpose and accordingly I will not grant the leave that the appellant seeks. 

costs

19                  Both the appellant and the respondent have filed notices of motion in relation to costs.  The respondent seeks the following orders:

‘1.        The Appellant pay the Respondent’s costs as ordered by Federal Magistrate Driver on 20 June 2003.

2.         A declaration that the Appellant not be heard in respect of this appeal nor in relation of any application made by notice of motion or otherwise in these proceedings until the Applicant has paid the said costs.

3.                  The appellant provide security for costs in respect of the Appeal. 

4.                  That the Appellant pay the Respondent’s costs of and incidental to this application. 

5.                  Such further order or other orders and the court deems fit.’ 

20                  The appellant seeks:

‘1.        That the order of Federal Magistrate driver [sic] made on [date not inserted] that the Appellant pay the costs of the Respondent in proceedings before the Federal Magistrates Court being proceedings number CZ 2 of 2002 be stayed.’ 

21                  The issue of costs can, to my mind, be dealt with briefly.  I have outlined in [2] above the difficulty that the respondent has had in getting any response from the appellant in relation to its attempts to obtain payment of its costs as ordered by the Federal Magistrate.  The fact that no time limit was set does not entitle the appellant to ignore his Honour’s order.  Nevertheless given the likelihood of the appeal being able to be heard in the near future I am not prepared to impose a time limit at this stage nor to make the progress of the appeal contingent on the payment of those costs.  Presumably, the fate of that costs order will ultimately be determined by the outcome of the appeal.  While I recognise that the respondent has not so far been able to enjoy the benefit of the costs order made in its favour I do not see that any significant additional disadvantage would ensue by my ordering that the Federal Magistrate’s costs order be stayed with respect to the progress of the appeal.  The orders I propose to make are explained below at [29]. 

22                  I am however minded to order that the appellant provide security for the respondent’s costs.  Security for costs is dealt with in s 56 of the Federal Court of Australia Act 1976 (Cth) and O 28 of the Federal Court Rules.  Order 52 r 20 addresses security for costs of an appeal.  The factors influencing the discretion to order security for costs were recently considered by Bennett J in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942.  Her Honour said:

‘In Chapman v Luminis Pty Ltd [2002] FCA 496 at [12], Tamberlin J considered s 56 of the Federal Court Act, together with Order 28 and Order 52 rule 20 of the Federal Court Rules and concluded that the discretion of the Court under s 56 is broad and unfettered and not delimited by Order 28 rule 3, although it must be exercised judicially.  He also referred, at [13], to the six specific matters identified in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 as relevant for consideration in deciding whether security for costs ought to be awarded.  They are: 

“The prospects of success;       

The quantum of risk that a costs order will not be satisfied;

Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim;

Whether any impecuniosity of the appellants arises out of the conduct complained of;

Whether there are aspects of public interest which weigh in the balance against such an order;

Whether there are any particular discretionary matters peculiar to the circumstances of the case.”’

23                  In view of her Honour’s analysis and the authorities to which she refers I am satisfied that in considering security for costs I am not limited by O 28 r 3.  I consider that the particular circumstances of this case are such that an order for security for costs is appropriate. 

The prospects of success

24                  The grounds of appeal are essentially that the Federal Magistrate erred in his findings and failed to deal with the evidence before him properly and completely.  A consideration of the Federal Magistrate’s reasons for decision reveals that his Honour in fact carefully assessed the evidence before him and displayed a healthy scepticism towards much of it.  These observations are borne out by my reading of the transcript of the proceedings before the learned Federal Magistrate.  It is not contentious to state that the evidence in this proceeding differs on certain points.  This is not altogether surprising as the evidence is largely comprised of peoples’ recollections and some of the relevant people were not asked to turn their minds to the events in question until some six years after their occurrence. 

25                  This is not a case where the appellant has a clear chance of succeeding.  In fact I would think it most unlikely that that the appeal will succeed.  Driver FM’s decision appears to me to be considered and reasonable and to have taken into account the earlier judgments in this matter as well as the conflicting evidence.  Whilst the appellant has enjoyed success at various stages in the history of this proceeding the appellant is yet to succeed on the substantive issues.  It may be that, with the benefit of argument, the judge deciding the appeal may form a different view but, in the circumstances, on this criterion I am satisfied that security for costs is appropriate.

The quantum of risk that a costs order will not be satisfied

26                  The respondent has provided some details of the appellant’s non-responsiveness to its request that he comply with the costs order of Driver FM.  This non-responsiveness appears to have little to do with the appellant’s request that the costs order be stayed pending the outcome of the appeal.  Indeed, it is apparent that the appellant has refused to instruct his solicitors in relation the outstanding costs order, except very recently in respect to the application for a stay.  In support of his application for a stay the appellant sought to provide evidence of his impecunious state.  This was not necessary as the respondent readily conceded the point.  It would appear, from the submissions made on this point that there is a distinct possibility that a costs order on the appeal would not be satisfied.

Whether the making of an order would be oppressive in that it would stifle a reasonably arguable claim

27                  While the factors mentioned in the preceding paragraph suggest that Mr Kowalski may have difficulty in meeting an order for security for costs no arguments to this effect have been put on his behalf.   He has apparently funded his litigation over the past decade and it may well be that he has more resources than are immediately apparent.  In any event, given the history of this matter, my assessment of its chances of success and the fact that the respondent has been put to the expense of defending itself for the past decade, I do not consider that an order that security for costs be provided would be unduly oppressive. 

Public interest issues and discretionary matters peculiar to the circumstances

28                  In my view there are no public interest issues or matters peculiar to the circumstances of this case that militate against an order for security for costs.  The issue on appeal is essentially one of fact, being the state of mind and the information of the respondent’s officers when they arrived at the appellant’s home on 6 February.

conclusion

29                  For the above reasons I propose to order that unless the appellant provides security for the costs of the respondent in the appeal in the amount of $5,000 in a form satisfactory to the Registrar on or before 8 December 2003, the appeal is to be stayed until further order.  I am satisfied that the costs order below should be stayed pending the resolution of the appeal if security for costs is provided and the appeal is not unduly delayed.  However, if the appeal is to be stayed for a protracted period because the appellant does not provide security for costs, I see no reason why the respondent should be unable to move on the costs order below.  Therefore I propose to order that, if security for costs is provided by 8 December 2003, the costs order made by Driver FM be stayed pending the decision in the appeal.  If security for costs is not provided by 8 December 2003, the appellant must pay the respondent’s costs as ordered by Driver FM by 31 December 2003.  The appellant must pay the respondent’s costs of the applications considered in these reasons. 

Associate:

Dated:              7 November 2003