FEDERAL COURT OF AUSTRALIA

Kowalski v Complete Exhaust Specialists Marion [2010] FCA 222

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The application seeks leave to appeal from part of the orders made by Federal Magistrate Simpson on 9 February 2010 in proceedings in the Federal Magistrates Court.  On that day, Federal Magistrate Simpson disqualified himself from hearing the proceeding and transferred the matter to the docket of another Federal Magistrate.  He did so on the application of the applicant.  The applicant applied for costs in relation to the application that Federal Magistrate Simpson disqualify himself, which he indicated in submissions would be his disbursements only (as he was appearing in person).  The application for costs was refused.

2                     The application for leave to appeal is confined to the order refusing him costs of that application.

3                     The claim in the Federal Magistrates Court is under ss 52 and 53 of the Trade Practices Act 1974 (Cth) (the TP Act).  On 28 August 2009, the respondents replaced a muffler on the applicant’s car at a cost of $230.  The applicant claims that they falsely represented to him that the muffler on his car needed to be replaced when in fact it did not.  He claims damages equivalent to the cost of the muffler, $1000 damages for unwarranted stress and anxiety caused to him by the respondents, and interest.

4                     The respondents’ defence is two-fold.  First, they say that the first respondent is an unincorporated partnership comprising the second respondent and his wife, so they challenge the application of the TP Act at all.  Secondly, they say they advised that the muffler be replaced because there were loose baffles inside it, and that the applicant’s wife agreed to that work being done.  They deny misleading and deceptive conduct.

5                     The claim has not been determined.

6                     The respondents did not attend on the hearing of the disqualification application. 

7                     The decision to grant leave to appeal is a discretionary one.  Generally, it is relevant to determine whether the decision was attended by sufficient doubt to warrant its being reconsidered by the Federal Court, and secondly whether substantial injustice would result if leave to appeal were refused supposing the decision be wrong:  Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

8                     I note, so that it is not suggested that I have overlooked the material, the applicant has specified his disbursements at $70, being said to be $15 to travel to Court on 9 February 2010, plus $5 for parking fees, and $50 for typing his application and written submissions and a letter (a total of 10 pages) on the disqualification application.  The payment for the typing is apparently confirmed by a copy of a letter from the typist dated 13 February 2010 on which is endorsed a receipt dated 14 February 2010.

9                     In my view, leave to appeal should be refused.  Federal Magistrate Simpson exercised a discretion as to whether to award costs of that application.  It is one of the unfortunate consequences of a disqualification application that costs may be incurred which, in one sense, it is unfair to visit upon the applicant but in another sense it is unfair to visit upon the respondent, because the respondent (as here) played no role in the circumstances giving rise to the disqualification application and did not participate in the hearing.  Given those circumstances, it was within the Federal Magistrate’s discretion to order that there be no costs of the application.

10                  In addition, although the applicant indicated that he was seeking recovery of disbursements only, there was no material before the Federal Magistrate upon which to indicate the nature or extent of those disbursements.  He did not at the time seek an opportunity to prove them.

11                  Thirdly, if the applicant’s claim is ultimately unsuccessful, it was legitimate for the Federal Magistrate to consider that it would be unfair to visit upon the respondents the costs of that application when the applicant has not established an entitlement to relief at all in the proceeding, and indeed when it may be found that either or both of the respondents’ defences to the claim should succeed.  As an exercise of discretion on the part of the Federal Magistrate, it is not possible to say that the decision was attended with sufficient doubt to warrant it being reconsidered by the Full Court of this Court: cf House v R (1936) 55 CLR 499 at 504-505.  Nor do I consider that substantial injustice will be caused if leave to appeal were refused, supposing the costs decision to have been wrong; having regard to the respective positions of the parties and to the fact that the issues between them were and remain undecided.

12                  For those reasons, the application for leave to appeal is refused.

Associate:

Dated:         16 March 2010