FEDERAL COURT OF AUSTRALIA Kowalski v Dolphin (No 2) [2011] FCA 779 Citation: Kowalski v Dolphin (No 2) [2011] FCA 779 Parties: KAZIMIR KOWALSKI v STEVEN PETER DOLPHIN, LIESCHKE & WEATHERILL, CERTAIN UNDERWRITERS AT LLOYDS and QBE INSURANCE (AUSTRALIA) LIMITED File number: SAD 12 of 2011 Judge: BESANKO J Date of judgment: 14 July 2011 Date of hearing: Heard on the papers Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: The respondents did not appear IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 12 of 2011 BETWEEN: KAZIMIR KOWALSKI Applicant AND: STEVEN PETER DOLPHIN First Respondent LIESCHKE & WEATHERILL Second Respondent CERTAIN UNDERWRITERS AT LLOYDS Third Respondent QBE INSURANCE (AUSTRALIA) LIMITED Fourth Respondent JUDGE: BESANKO J DATE OF ORDER: 14 JULY 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant's notice of motion dated 2 June 2011 not be accepted for filing. 2. Leave to issue the notice of motion dated 2 June 2011 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. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 12 of 2011 BETWEEN: KAZIMIR KOWALSKI Applicant AND: STEVEN PETER DOLPHIN First Respondent LIESCHKE & WEATHERILL Second Respondent CERTAIN UNDERWRITERS AT LLOYDS Third Respondent QBE INSURANCE (AUSTRALIA) LIMITED Fourth Respondent JUDGE: BESANKO J DATE: 14 JULY 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant has lodged a notice of motion in the Registry of the Court in which he seeks a declaration that an order made by Mansfield J in proceeding SAD 12 of 2011 is 'ultra vires, a nullity, null and void and of no legal effect whatsoever'. The applicant also seeks an order that there be summary judgment against the first, second, third and fourth respondents in proceeding SAD 12 of 2011. 2 A brief chronology of events is as follows. By application issued on 18 January 2011 the applicant commenced proceeding SAD 12 of 2011 against Steven Peter Dolphin, Lieschke and Weatherill, 'Certain Underwriters at Lloyds' and QBE Insurance (Australia) Limited. Certain interlocutory orders were made by Mansfield J on 2 March 2011 and again on 21 March 2011. I do not need to set out the details. 3 On 7 April 2011, Stone J, in proceeding SAD 75 of 2010, made orders on the application of the Registrar of the Federal Court against the applicant in the following terms: THE COURT DECLARES THAT: 1. Kazimir Kowalski, the respondent in this proceeding, has habitually, persistently and without reasonable grounds instituted vexatious proceedings in this Court. THE COURT ORDERS THAT: 2. Kazimir Kowalski, the respondent in this proceeding, not institute any further proceeding in this Court without the leave of the Court. 3. Any proceeding instituted prior to this order by Kazimir Kowalski, the respondent in this proceeding, not be continued without the leave of the Court. 4. The respondent's notice of objection to competency be dismissed. 5. The respondent pay the applicant's costs of this proceeding. (Soden v Kowalski [2011] FCA 318) 4 On 29 April 2011, the applicant applied for leave to continue with proceeding SAD 12 of 2011 and he also applied for summary judgment against each of the respondents and costs. That application was pursuant to O 21 r 5(1) of the Federal Court Rules which provides as follows: If the Court has made an order under rule 1 or rule 2 against any person, the person may be given leave to institute or continue a proceeding only if the Court is satisfied that: (a) the proceeding is not an abuse of process; and (b) there is prima facie ground for the proceeding. 5 The applicant's application under the above rule was determined by Mansfield J on the papers (see O 21 r 5(2)). Mansfield J decided that the application should be refused and he ordered that, 'the application by the applicant for leave to continue with this proceeding, including for summary judgment against the respondents is refused" (Kowalski v Dolphin [2011] FCA 502). It is that order which the applicant challenges. As I understand the applicant's contentions he claims that the proceeding could not be frivolous and vexatious because on 21 March 2011 Mansfield J made an order that he be granted leave to serve his amended application and amended statement of claim filed 9 March 2011. He further contends that in any event Mansfield J should have disqualified himself from hearing his application for leave to continue the proceeding. 6 It is not clear what jurisdiction the applicant seeks to invoke by the proposed notice of motion. I do not know of any original jurisdiction of a judge of this Court to declare the order of another judge to be ultra vires and a nullity. It would seem then that this is an attempt by the applicant to appeal or seek leave to appeal from the order of Mansfield J. An appeal is a proceeding in the Court (Federal Court of Australia Act 1976 (Cth) s 4). In any event, whether it be continuing a proceeding or instituting a proceeding the leave of the Court is required because of the terms of the order made by Stone J on 7 April 2011. 7 I have heard and determined other matters involving the applicant and for that reason I have considered whether I should disqualify myself from determining this application for leave. I did disqualify myself in one of the applicant's matters but that was for a particular reason, being a common factual background: Kowalski v Repatriation Commission [2009] FCA 794; Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044. I have had no prior involvement in this matter and I see no reason to disqualify myself. 8 Mansfield J held that the orders made by Stone J applied to the proceeding. His Honour then said (at [11]-[15]): 11 When the application was first issued, it was ordered that it not be served until after the first directions hearing. That was because the original application and the original statement of claim contained a number of defects which might have made it unfair for the respondents to have been required to respond to them. I raised those matters, or some of them, with the applicant at the first directions hearing. I prepared a memorandum for the Registry of 3 March 2011 indicating some of these defects, in part to alert the Registry of my concerns, and also so that the applicant might have some guidance in the preparation of an amended application and amended statement of claim. I append to these reasons for decision a copy of that memorandum. A copy of the memorandum was provided to the applicant from the Registry on 4 March 2011. 12 The applicant then filed an amended application and an amended statement of claim on 9 March 2011, and on 21 March 2011 I gave him leave to serve those documents. My reasons for granting that leave was not because I was satisfied that those documents in their current form appropriately pleaded causes of action available to the applicant in satisfactory terms or identified causes of action justiciable by this Court. I did so because the applicant indicated that he had endeavoured as best he could to have regard to those considerations in drawing the further documents. 13 The amended application and the amended statement of claim contained significantly vitriolic and unnecessary terms referring to fraudulent conduct on the part of some or more of the respondents and extensively invoked a range of statutory provisions including a number of provisions of the Trade Practices Act 1974 (Cth). The range of claims contended by the applicant sourced from various statutory provisions might be a contrivance to enliven the jurisdiction of this Court in circumstances where the applicant has been declared a vexatious litigant in the Courts of South Australia: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In my view the amended application and the amended statement of claim do not clearly plead a cause or causes of action on pleaded facts, upon which that cause of action or those causes of action might be made out in a satisfactory manner. It is not necessary to go into further detail on those matters. They leave me with the firm view that the applicant should not be permitted to prosecute his claims, as presently expressed, in this Court. 14 The application for leave to continue with this proceeding is refused. I do not think that any respondent has incurred costs by this motion. 15 I note that the applicant has previously, in other matters and in this matter, asked me to recuse myself. In some instances, I declined to do so. More recently, I have previously decided a number of matters adversely to the applicant referred to in the reasons for decision in Soden v Kowalski [2011] FCA 318. I have indicated to the applicant that I did not propose to hear any more claims in which he is the applicant, save for managing them to the point where any contentious interlocutory issues could be addressed or the matter was ready for trial. I took that course simply because, from the applicant's viewpoint, he may have felt that I was disposed to decide any claim by him adversely to him without regard to the merits. I did not in fact consider that in fact there were proper grounds upon which I should recuse myself from hearing any further claim made by the applicant. I have dealt with this matter, notwithstanding that position, and notwithstanding that I assume the applicant would object to me doing so. I do not consider that any reasonable bystander, properly informed, would consider that I would not bring an impartial mind to its determination according to law. 9 The notice of motion cannot be issued without the leave of the Court. In so far as it is or includes an application for leave then such leave must be refused on the grounds that I am not satisfied that it is not an abuse of process or that there is a prima facie ground for the proceeding. I will order that the applicant's notice of motion dated 2 June 2011 not be accepted for filing and that leave to issue the notice of motion dated 2 June 2011 be refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 July 2011