Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Soden v Kowalski [2011] FCA 318 Citation: Soden v Kowalski [2011] FCA 318
Parties: WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA) v KAZIMIR KOWALSKI and MITSUBISHI MOTORS AUSTRALIA LIMITED, MMAL STAFF SUPERANNUATION FUND PTY LTD and AMP SUPERANNUATION LTD
File numbers: SAD 75 of 2010 SAD 96 of 2010
Judge: STONE J
Date of judgment: 7 April 2011
Catchwords: PRACTICE AND PROCEDURE – application pursuant to ss 21 and 23 Federal Court of Australia Act 1976 (Cth) and O 21 r1 and O 35 r 1 Federal Court Rules to have respondent declared a vexatious litigant – order sought preventing respondent from bringing further proceedings against the applicants and generally in this Court without leave – discussion of principles – meaning of 'proceeding' – discussion of 'vexatious proceeding'– vexatiousness a quality of the proceeding not the respondent's intention – test is whether a proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless – question of whether respondent has instituted proceedings 'habitually, persistently and without reasonable grounds' not to be confused with whether proceeding is vexatious – requirements of O 21 rr 1 and 2 satisfied – orders granted
Legislation: Federal Court of Australia Act 1976 (Cth) ss 4, 21 and 23, s 59(2)(l) Supreme Court Act 1935 (SA) s 39(5) Federal Court Rules O 21 rr 1, 2, 4 and 5, O 35 r 1
Cases cited: Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269 Attorney-General v Collier [2001] NZAR 137 Attorney-General v Wentworth (1988) 14 NSWLR 481 Bahonko v Nurses Board of Victoria [2008] FCAFC 29 Brogden v Attorney-General [2001] NZAR 809 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Gallo v The Honourable the Attorney-General VSC 4 September 1984 (unreported) Starke J GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 Horvarth v Commonwealth of Australia [1999] FCA 504 Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231 Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 Granich & Associates v Yap [2004] FCA 1567 Jones v Skyring (1992) 109 ALR 303 at 312 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007 [FCA] 1069 Ramsey v Skyring (1999) 164 ALR 378 Re Vernazza [1960] 1 QB 197 Watson v Watson (1968) 70 SR(NSW) 203
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