FEDERAL COURT OF AUSTRALIA

Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873

KAZIMIR KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LIMITED

SAD 171 of 2008

BESANKO J

4 DECEMBER 2008

ADELAIDE (VIA VIDEO LINK WITH SYDNEY)

THE COURT ORDERS THAT:

1.                  The applicant’s notice of motion be dismissed.

2.                  The applicant is to pay the respondent’s costs of the hearing on 24 November 2008, and the outline of submissions dated 24 November 2008.

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

1                     This is an application by the applicant in a proceeding in this Court that I disqualify myself from further involvement in the proceeding. In essence, the applicant claims that there is a reasonable apprehension of bias by reason of prejudgment. This reasonable apprehension is said to arise by reason of the following matters:

1.         My involvement in this proceeding and, in particular, interlocutory orders and directions that I made on 11 November 2008; and

2.         My involvement as a judge of the Supreme Court of South Australia in two actions in that Court: Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; (2004) 236 LSJS 101; Kowalski v Layton [2006] SASC 28.

2                     I must assess the question in light of the issues raised at this stage of the proceeding, and that means by reference to the applicant’s application and statement of claim. The test for apparent bias is well known: Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 considered the application of the test in a case where prejudgment was said to be involved.

3                     The respondent to this application submitted – correctly, in my view – that the question whether I should disqualify myself was ultimately a question for me to decide. It did provide helpful submissions dealing with the relevant legal principles.

4                     The applicant complained of the orders and directions that I made on 11 November 2008 and, in particular, the order that the requirement for the respondent to file a defence be dispensed with until further order. That order was made in light of a foreshadowed application by the respondent for a stay and/or summary dismissal and/or a strike out of the pleadings. In the circumstances, no case of apprehended bias can arise by reason of the orders that I made on 11 November 2008.

5                     The issue before the Full Court of the South Australian Supreme Court, of which I was a member, in Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; (2004) 236 LSJS 101 was whether or not the Workers Compensation Tribunal was a court of the state for the purposes of s 39 of the Supreme Court Act 1935 (SA) (“Supreme Court Act”). That question raised a question of law. It is not a relevant question in this proceeding, nor are any of the facts in the appeal relevant facts in this proceeding. The fact that the applicant disagrees with the unanimous decision of the Court in the appeal is not sufficient to support a case of apprehended bias.

6                     The issue before me in Kowalski v Layton [2006] SASC 28 was whether a purported appeal by the applicant should be struck out, having regard to an order made by Bleby J under s 39 of the Supreme Court Act. The purported appeal was against an order made by the Legal Practitioners Disciplinary Tribunal dismissing as vexatious a complaint against the Honourable Justice Layton. The complaint was said to relate to conduct by the Honourable Justice Layton when she appeared as counsel before her appointment for the respondent in an action by the applicant in the South Australian Supreme Court. I declined to disqualify myself in that application for the reasons I gave (at [9]-[15]). I decided that the appeal was incompetent, or an abuse of process, by reason of the fact that it had been instituted without leave as required by the order made by Bleby J under s 39 of the Supreme Court Act. The applicant’s unsuccessful contentions against that conclusion are set out in my reasons (at [17]-[27]). They raise what are, in essence, legal points, where the facts were either not in dispute or were facts which are in no way raised in, or relevant to, the present proceeding.

7                     In my opinion, my involvement in the two cases referred to above does not raise a case of apprehended bias.

8                     The applicant’s notice of motion must be dismissed.

Associate:

Dated:         10 December 2008