FEDERAL COURT OF AUSTRALIA

Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289

KAZIMIR KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD

SAD 133 of 2009

MANSFIELD J

9 NOVEMBER 2009

ADELAIDE

THE COURT ORDERS THAT:

1.         Compliance with the Federal Court Rules is dispensed with insofar as the Respondent is required to file a Notice of Appearance prior to filing its Notice of Motion of 2 October 2009, such order to operate effective from 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” 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; and

(c)        the costs of the motion be referred to the Full Court for determination.

3.         On the Notice of Motion of the Applicant of 12 October 2009:

(a)        the motion be referred to the Full Court for determination to the extent necessary; and

(b)        the costs of the motion be referred to the Full Court for determination.

4.         On the oral application of the Applicant for leave to appeal from Order 2(b) hereof, leave to appeal therefrom is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 3 September 2009, Besanko J delivered a judgment in proceedings between Mr Kowalski and Mitsubishi Motors Australia Limited (Mitsubishi) in which his Honour ordered that certain Notices of Motion be dismissed, that the Amended Statement of Claim filed in that proceeding be struck out and that the proceeding itself be dismissed: Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991. The following day, Mr Kowalski applied by a document entitled “Notice of Appeal” to appeal from that decision. That application is this proceeding.  It is listed for hearing before the Full Court in the February session of the Full Court. The “Notice of Appeal” set out the orders sought, including in paragraph 3.1 of the “Notice of Appeal”, an order for leave to appeal if the decision he sought to appeal from was an interlocutory decision.

2                          Mitsubishi, by Notice of Motion of 2 October 2009, has applied to the Court that the “appeal” be dismissed as incompetent on the ground that the judgment sought to be appealed from is interlocutory, and that leave to appeal is required and that no leave to appeal application has been made in accordance with O 52 r 10 of the Federal Court Rules, and that leave to appeal has not been granted. The second part of Mitsubishi’s Notice of Motion was that the “Notice of Appeal” be removed from the Court file pursuant to O 41 r 5 of the Federal Court Rules on the ground that it contains scandalous matter, or alternatively that the scandalous matter be struck out. It appears from the submissions made today that Mitsubishi’s application in that regard is to have the words “he perverted the course of justice and” (or words to that effect) variously appearing in the “Notice of Appeal” removed as scandalous. Mr Kowalski disputes that those words are scandalous.

3                          Mr Kowalski himself then brought a Notice of Motion on 12 October 2009 seeking to dismiss Mitsubishi’s Motion of 2 October 2009, but really asserting that it is a final judgment from which the appeal is purportedly brought, and alternatively that the “Notice of Appeal” seeks leave to appeal in any event.

4                          At the commencement of the hearing of the Notices of Motion, Mr Kowalski took a technical point, that Mitsubishi’s Motion was filed before Mitsubishi had filed a Notice of Appearance. To the extent necessary, I waive compliance with the Federal Court Rules to enable the filing and service of Mitsubishi’s Notice of Motion before it had filed an appearance. It is a technical point.  It can now cause no unfairness to either party to make that order.  That order will operate nunc pro tunc.

5                          There is one other matter I mention before addressing the two Motions. Mr Kowalski asserted that he had a right to have an application for leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) heard by a Full Court at his election. That is not the jurisprudence of the Court. Order 52 r 10 of the Federal Court Rules provides for the means by which leave to appeal is to be sought if the appeal is from an interlocutory judgment. This Court has decided that it is not a matter of election as of right on the part of an applicant for leave to appeal to have that application for leave to appeal heard by a Full Court as distinct from a single judge of the Court. The cases dealing with that principle are assembled in the Butterworth’s annotation of O 52 r 10 of the Federal Court Rules at [47,055.2]. I will not repeat them.

6                          In the present circumstances, it does not matter because, on its Notice of Motion, Mitsubishi through counsel has made it plain that Mitsubishi is content for the “appeal” to proceed as if it were an application for leave to appeal from an interlocutory decision of Besanko J, and if leave to appeal is given, then for the appeal to be heard at the same time. That is the process which is presently being adopted. Mitsubishi indicated in its submissions that it has brought this motion to protect its position on the question of costs before the Full Court.

7                          Counsel for Mitsubishi pointed out that there is still some possible room to debate as to the jurisdiction of a single judge of the Court to determine an application such as the main, that is the first application of Mitsubishi on its Motion where the “Notice of Appeal” asserts primarily that the judgment appealed from is not interlocutory but is final. In those circumstances, I adopt the invitation of counsel for Mitsubishi to refer paragraph 1 of its Notice of Motion to the Full Court, to be heard and determined at the same time as the “appeal” of Mr Kowalski.  At that time the Full Court will decide whether the judgment appealed from is an interlocutory judgment only, and if so, address the question of whether leave to appeal should be given.  If it is a final judgment, or leave to appeal is given, the Full Court will no doubt also address the merits of the appeal.

8                          That acknowledgement by counsel for Mitsubishi in the course of her helpful submissions made much of what Mr Kowalski wanted to say unnecessary. I pointed that out to him at the commencement of his submissions. He nevertheless persisted in making submissions asserting the incorrectness of the position taken by Mitsubishi. He spent some time attacking the honesty and candour of the legal practitioners representing Mitsubishi, without there being on the material before me any foundation for doing so, and despite my attempts to get him to stop. It was an entirely unnecessary attack in the context of the Motions, and on the material before me, it was quite unfounded. I make those observations because I propose also to refer the costs of these two Notices of Motion to the Full Court (as well as the two Motions themselves).  No doubt my observations will be brought to the attention of the Full Court.

9                          I have also decided to refer the first part of Mitsubishi’s Motion to the Full Court for an additional reason. I make no comment upon the correctness or otherwise of the argument that Besanko J ought to have disqualified himself at all on the ground of ostensible bias. If Mr Kowalski is correct, and satisfies the Full Court that Besanko J should have disqualified himself from hearing the proceeding at first instance, there is an additional issue as to whether in those circumstances the refusal to do so leading to the dismissal of the proceeding should entitle him to an appeal as of right, even if otherwise the orders which his Honour made were interlocutory. He took the objection to Besanko J hearing the matter at an appropriate time. As I have indicated, I am not deciding that question one way or another, but there seems to me to be some difference between simply striking out a Statement of Claim, as was done under O 20 or O 11 of the Federal Court Rules, and refusing to disqualify oneself because of a claim of ostensible bias.

10                        On the second part of Mitsubishi’s Motion, I agree that the way in which the “Notice of Appeal” is expressed is scandalous. There is absolutely no foundation for asserting that Besanko J “perverted the course of justice” in the way alleged, and no foundation is shown in what it is alleged in the “Notice of Appeal” to support such an allegation. I propose to strike out from the “Notice of Appeal” 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”.

11                        I point out, in particular to Mr Kowalski, that that will not effect his right to argue the principal matters that he wants to argue on the appeal, or the leave to appeal application, because his points essentially appear twofold:

(1)        that Besanko J, in circumstances which are discussed in his Honour’s reasons, should have disqualified himself on the grounds of ostensible bias; and

(2)        in any event, on the material before his Honour, he erred at law in reaching the conclusions and making the orders that he did.

Both grounds remain available for argument by Mr Kowalski before the Full Court.

12                        Be that as it may, the orders I propose to make on Mitsubishi’s Motion are: as to paragraph 1 of the Notice of Motion, refer the motion to the Full Court, to be heard and determined at the same time as the “Notice of Appeal” of Mr Kowalski; and as to paragraph 2 of the Notice of Motion, order that 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.

13                        Section 25(2B)(c) of the FCA Act provides that a single judge may give directions about the conduct of an appeal to the Court. Order 41 r 5(b) of the Federal Court Rules provides that if there is matter which is, having regard to the issues in the proceeding, scandalous, vexatious or oppressive, the Court may order that the matter be struck out of the document.I make the order on paragraph 2 of Mitsubishi’s Motion pursuant to s 25(2B)(c) of the FCA Act and O 41 r 5(b) of the Federal Court Rules. It is better that the costs of that Motion be dealt with fully by the Full Court, rather than piecemeal.

14                        On Mr Kowalski’s Motion of 12 October 2009, I also to refer it to the Full Court, and I refer the costs of that motion to the Full Court. In effect, however, it seems to me that that Motion was unnecessary, because the matters raised in paragraphs 1.1 and 1.2 and paragraph 2 of that Motion are equally able to be said by Mr Kowalski in opposition to Mitsubishi’s Notice of Motion, without the further Motion of Mr Kowalski needing to be addressed. However, in the circumstances I propose to refer that motion to the Full Court.

15                        After I had indicated my intention to make those orders, Mr Kowalski indicated that he sought leave to appeal from the order striking out parts of his “Notice of Appeal” as scandalous. I said that I would deal with that application for leave to appeal from my orders in these written reasons. In my view, there is nothing to be gained by granting the leave sought by Mr Kowalski to appeal from that order. The substantive issues which he seeks to ventilate can all be dealt with by the Full Court in any event, on his “Notice of Appeal”. To grant leave would be futile.  Nor would any substantial injustice flow from the refusal of leave to appeal from that order.  Nor has anything been identified in submissions or on the material presented in support of the oral application for leave to appeal to indicate any foundation at all for the assertion which has been struck out.  See generally Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

Associate:

Dated:         10 November 2009