Kowalski v Bourne (No.4) [2010] FMCA 679 (24 August 2010)

Last Updated: 4 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOWALSKI v BOURNE (No.4)

[2010] FMCA 679

TRADE PRACTICES – Dismissal of application on basis that no evidence capable of constituting alleged breaches of the Trade Practices Act.

Trade Practices Act 1974 (Cth), ss.6, 52 & 53 Fair Trading Act 1987 (SA)

ACCC v Dukemaster Pty Ltd [2009] FCA 682

Applicant:

KAZIMIR KOWALSKI

Respondent:

TIM BOURNE

File Number:

ADG 95 of 2010

Judgment of:

Lindsay FM

Hearing date:

24 August 2010

Date of Last Submission:

24 August 2010

Delivered at:

Adelaide

Delivered on:

24 August 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Camatta

Solicitors for the Respondent:

Camatta Lempens Lawyers Pty Ltd

ORDERS

(1) The Amended Application sworn by the applicant on 21 May 2010 is dismissed.
(2) The applicant do pay the respondent’s costs of and incidental to these proceedings fixed in the sum of NINE THOUSAND SIX HUNDRED AND SEVENTY FIVE DOLLARS [$9,675.00].

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 95 of 2010

KAZIMIR KOWALSKI

Applicant

And

TIM BOURNE

Respondent

REASONS FOR JUDGMENT

1. This was a matter that was listed for trial before me this morning and it is an amended application which we find as an annexure to an affidavit sworn by Mr Kowalski on 21 May. The application relates to what is alleged is the conduct of the respondent on 26 April of this year. His behaviour on that date is said to constitute a breach of the sections 52 and 53 and 6(3)(a) and (b) of the Trade Practices Act 1974. There is a reference to the provisions of the Fair Trading Act 1987 which mirror those provisions, and I have not heard any argument in relation to this, but the respondent is not a corporation. It is the reliance upon section 6(3)(a) and (b) of the Trade Practices Act that gives the Court a jurisdiction to entertain the application.
2. Having taken that step, I am assuming Mr Kowalski would have been inviting me to exercise the accrued jurisdiction of the Court and deal with the matter under the corresponding provisions of the Fair Trading Act.
3. As I say, the application relates to conduct of Mr Bourne alleged to have occurred on 26 April 2010. As to what that conduct was I now know what Mr Kowalski’s case on that is. He left the Court in the middle of Mr Bourne’s examination-in-chief; when I say “the middle”, he was part way through at least his examination of Mr Bourne. At that point, he had indicated to me that he had tendered all the documents he proposed to rely on. He did not propose to give any oral evidence himself and he did not give me any notice of any other witness he wanted to call so I have all the evidence that he was intending to rely upon save for the balance of the evidence that will arise from his examination of Mr Bourne, which is not occurring because he has left and, having been given an opportunity to see whether he had cooled down, as it were, he has not returned this afternoon so the reason I am not hearing the balance of that examination evidence is because
   Mr Kowalski is not here.
4. I know, from his affidavit material, what he says occurred on 25 April. The matter has its genesis in some events that occurred in the early 1990’s. In fact, it is going back as far as 1989. He had instructed Mr Bourne to act for him in relation to some proceedings in both the District Court and Industrial Court relating to an eye injury sustained during the course of his employment. At some stage, he ceased to instruct Mr Bourne and instructed other solicitors, R J Cole and Partners. Mr Bourne sent him a bill for his work. Ultimately proceedings were issued to recover those moneys. Mr Kowalski then did not oppose the entry of judgment in those proceedings and that occurred – he consented to the judgment, in fact, in January 1993 and he tells me paid the moneys the subject of the judgment in July of 1993. So these are events that occurred just over 17 years ago.
5. For reasons that apparently have something to do with it coming to his attention that Mr Bourne fulfilled some duties in some public office – that is as best as I could understand the material that was before me – he decided to write to Mr Bourne about these matters on 25 April of this year which is nearly 17 years after he has paid the costs and more than 17 years since he has consented to a judgment in relation to the costs. He makes an allegation about breaches of the Legal Practitioners Act when he writes to Mr Bourne, and accuses him of fraud without particularising it. Perhaps unsurprisingly, given the contents of the letter which is annexed to page 26 of the annexures to his affidavit sworn on 28 April 2010, Mr Bourne writes a brief letter in response on the following day indicating that the allegation of fraud, although ridiculous, is intended to cause him to pay money to him.
6. He warns him about whether that conduct, in other words, the way Mr Bourne has interpreted his behaviour, might be a breach of the criminal law and he asks for a retraction of what he says is a baseless allegation. That is the conduct which Mr Kowalski’s application tells me constitutes the breach of sections 52 and 53 of the Trade Practices Act. We would not be dealing with the matter at all, of course, if I was not satisfied the Court had the jurisdiction to entertain the application. Mr Bourne is not a corporation, of course, but because Mr Kowalski makes allegations that the conduct, such as it is, involved the use of telecommunication services, it is a matter that he says is caught by section 6(3)(a) and (b) of the Trade Practices Act, and no point was taken about that by the respondent so the matter has proceeded on its merits. However, in my view, there is no merit in the application.
7. There is a helpful summary of the principles to be applied in relation to section 52 to be found in ACCC v Dukemaster Pty Ltd [2009] FCA 682 and those matters are set out at page 561 of Miller’s Annotated Trade Practices Act and there are a series of dot points indicating the kinds of matters to which the Court looks to which the Court expects to be established in order for such an application to be made out. As I say, we are not in any doubt about what the claim relates to. It relates to Mr Bourne’s responsive letter to Mr Kowalski of 26 April and I have to ask myself, what is the evidence upon which I could act or rely to be satisfied that Mr Bourne has engaged in conduct which is misleading or deceptive or likely to mislead or deceive? The conduct can include the making of a statement so the fact that it is in a letter does not make any difference. But the conduct must lead or be capable of leading a person into error and the error or misconception must result from the conduct and not from other circumstances for which the respondent is not responsible.
8. Mr Kowalski, when he wrote to Mr Bourne, had a view that he had behaved fraudulently. It is a view which, on the basis of the material available to me, seems to me to be completely baseless but I do not think I need to make any finding in relation to that. That is just an observation I make on the basis of the material available to me but it is not germane to the exercise in which I am involved in the adjudication of this application. It is whether Mr Bourne’s letter of 26 April is capable of constituting a breach of section 52 of the Trade Practices Act and, in my view, given that Mr Kowalski had the views he did have in relation to Mr Bourne when he wrote to him, then they were not views that were altered, or modified, or distorted in any way by Mr Bourne’s response.
9. Mr Bourne’s response, as it were, only added fuel to the fire in that sense. On the basis of all the material available to me, there is simply no evidence at all which is capable of persuading me that the letter Mr Bourne wrote to him on 26 April led Mr Kowalski into error or misconception, especially having regard to the fact that the sending of such a letter in those circumstances, was about matters which at that stage about 17 years old.
10. There is certainly no evidence either of any ability for me to find that the sending of the letter by Mr Bourne was likely to mislead or deceive Mr Kowalski. The test in relation to these matters is, whether, objectively speaking, the letter of 26 April is in any way capable of constituting the kind of conduct that would be impugned by section 52 of the Trade Practices Act. All of those observations apply to section 53 of the Act, which talks of a respondent in trade or commerce in connexion with the supply or possibly supply of goods or services, making false representations.
11. Mr Bourne was sent a letter by Mr Kowalski, in which he made the most serious allegations as to Mr Bourne’s conduct, in relation to events that were some 17 years old at the date of the sending of the correspondence. Mr Bourne’s robust denial of that allegation and the request for a retraction, in my view, on any objective basis, is not capable of constituting the kind of conduct to which section 53 relates. During the course of today’s hearing, Mr Kowalski indicated – and it led to me making an earlier determination – that he had made an application to have the costs that led to the proceedings, and the judgment and the payment back 1993 taxed. It may be that his concern is in relation to whether he ought to have paid those costs. I do not express any view as to those matters, other than as to the circumstance that the proceedings in which Mr Bourne sought to recover the costs were not contested by Mr Kowalski.
12. He consented to the judgment. Some months later he made payment in relation to the judgment. But whatever the merits of Mr Kowalski’s complaints in relation to the entry of the judgment, and the request for the payment of the money, and the payment of the money that was extracted therefrom, they are not matters that ground any kind of application, or ground any kind of breach of these provisions of the Trade Practices Act or of the provisions of the Fair Trading Act, even if I were persuaded that it was appropriate to exercise the accrued jurisdiction of the Court.
13. And I am making that finding upon the basis of an acceptance of all of the material upon which Mr Kowalski relies. He indicated to me an intention not to give any oral evidence in addition to that which was to be found in his affidavits upon which he relied. True it is that I have not had the balance of Mr Bourne’s evidence. Mr Kowalski abandoned his examination at a point in it when he was having difficulty in persuading me of the relevance of any of the questions he was putting to Mr Bourne. The questions were irrelevant. They related to these events circa 1993, but these were events that were not disputed.
14. The history Mr Kowalski gave me in his opening remarks, and which are set out in the documents he provided to me, as to how it was that the costs were incurred, the demand for payment of them, the recovery action in the Local Court for the moneys, the payment of the moneys; none of these matters were in dispute. What I needed to hear, to enable me to be satisfied that the questions and answers were going to be relevant to my determination were questions being asked of Mr Bourne which would go any way towards establishing that this conduct on 26 April, the writing of a letter in the circumstances I have outlined, constituted a breach of the Act.
15. We were a long way from anything that was relevant to that determination in the examination that had occurred to that point. Who knows what further examination would have revealed. I do not know. All I know is that it is not the respondent’s fault that I am not hearing it. It is Mr Kowalski’s decision to, effectively, abandon his examination in the face of adverse rulings in relation to the relevance of the questions he was asking at that point, that led to the termination of the examination. So I do not want it to be thought that I am not dealing with the matter on its merits. I am. All that is missing, in terms of a completed case from Mr Kowalski, is the balance of Mr Bourne’s examination and that is Mr Kowalski’s own responsibility.
16. The matter on its merits is far fetched. The application under these provisions of the Trade Practices Act and the Fair Trading Act, as it relates to the events of 26 April is far fetched. There is no evidence that has been presented by Mr Kowalski that is capable of being relied upon to enable me to make orders in terms of the application. The application will be dismissed.
17. Mr Bourne was subpoenaed by Mr Kowalski. There was no application to set the subpoena aside because Mr Borne was a party. He entered the witness box in answer to the subpoena, and the questions that were being asked of him by Mr Kowalski were questions that were being asked in examination-in-chief.
18. There is an application for costs. There is nothing about the circumstances of this matter that indicate to me that costs should not follow the event. Mr Camatta has carefully taken me through the Schedule 1 to the Rules of this Court. This is a circumstance where, pursuant to Rule 21.02(2), I think it appropriate to set the amount of the costs in accordance with the scale.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 1 September 2010