Attorney-General for the State of South Australia v Kowalski (No 2) - [2012] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 2)
[2012] SASC 99
Reasons for Decision of The Honourable Justice Blue
12 June 2012
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY
The Attorney-General seeks a declaration that the defendant has persistently instituted vexatious proceedings and orders pursuant to s 39 of the Supreme Court Act 1935 (SA). The Attorney-General provided particulars which identify whether each alleged vexatious proceeding is alleged to be instituted without reasonable ground or to harass or annoy.
The defendant seeks further and better particulars of those particulars on the ground that he otherwise does not have fair notice of the claims alleged against him.
Order: the Attorney-General provide further and better particulars of: (1) the determinations in earlier proceedings which allegedly precluded the defendant from seeking to re-litigate certain matters; (2) each orchestrated campaign the subject of the allegations that underlying proceedings were instituted to harass or annoy; (3) the requirement for leave alleged to have been required in respect of certain proceedings; (4) certain allegations and lack of evidentiary support for them.
Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Rules 2006 (SA) r 98(2), r 102; Legal Practitioners Act 1981 (SA) s 41(2), referred to.
East-West Airlines (Operations) Ltd v The Commonwealth (1983) 49 ALR 323; North Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422, considered.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 2)
[2012] SASC 99
Civil: Application
BLUE J.
On request for particulars

In this action, the Attorney-General seeks a declaration that Mr Kowalski has persistently instituted vexatious proceedings within the meaning of and orders pursuant to section 39 of the Supreme Court Act 1935 (SA).
Section 39(5) defines vexatious proceedings as follows:
For the purposes of this section, proceedings are vexatious—
(a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b) if instituted without reasonable ground.
The Attorney‑General has provided Particulars which, amongst other things, identify for each alleged vexatious proceeding (“underlying proceedings”) whether it is alleged to be vexatious under paragraph (a) as instituted without reasonable ground (“the first limb”), or paragraph (b) as instituted to harass or annoy (“the second limb”), or both paragraphs of section 39(5). Mr Kowalski requested further and better particulars of those Particulars and makes application for an order that they be provided.
Orders for further particulars are governed by rule 102 of the Supreme Court Civil Rules 2006 (SA). Rule 102(3) provides:
The court will only make an order for further particulars if satisfied that –
(a) the pleadings do not give fair notice of the party’s case; and
(b) the order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.
Mr Kowalski’s request falls into six categories and I address them category by category.
Subject matter of charges
One category relates to the Attorney-General’s reliance on the first limb of section 39(5) and involves those aspects of the Particulars which relate to the subject matter of charges made by Mr Kowalski against practitioners in the Legal Practitioners Disciplinary Tribunal (“the Tribunal”).
This category is exemplified by Mr Kowalski’s request relating to proceeding 5. The Attorney‑General alleges that proceeding 5 was instituted without reasonable ground. The Particulars provided by the Attorney‑General the subject of this specific request are as follows:
This proceeding alleges false statements made to a magistrate. No such statements were made.
Mr Kowalski seeks identification of the statements to the magistrate alleged in the charge laid before the Tribunal to have been made and to have been false.
The Attorney‑General’s summons seeking relief pursuant to section 39 was supported by an affidavit by a solicitor from the Crown Solicitor’s Office. Her affidavit exhibited the relevant charge made by Mr Kowalski against the practitioner (exhibit 2.6). That charge identified the statement alleged in the charge to be false as a statement by the practitioner that Mr Kowalski had not made a request to the practitioner’s firm under section 41(2) of the Legal Practitioners Act 1981 (SA). On this basis, I am not satisfied that the pleadings do not give fair notice of the Attorney‑General’s case in this respect.
On this application for further and better particulars, I am only called upon to determine whether the Particulars do not give to Mr Kowalski fair notice of the case he has to meet and, if so, whether he is liable to suffer substantial prejudice without further and better particulars.
Other requests in the same category are the second request in respect of proceedings 7-11, 13-17, 20, 24, 25, 28, 31, 32, 36, 37, 38, 49, 50, 57 and 58. I reach the same conclusion in relation to these requests for the same reasons as in respect of proceeding 5.
Proceeding instituted without leave
This category relates to the first limb of section 39(5) and involves those aspects of the Particulars which allege that proceedings were allegedly instituted without leave.
This category is exemplified by the second request in respect of proceeding 18. The Particulars the subject of this specific request are as follows:
Appeal against decision of the LPDT made without leave and therefore incompetent.
Mr Kowalski’s request is to identify the “leave” needed.
During the hearing on Mr Kowalski’s application for further and better particulars, the Attorney‑General clarified that the reference to “leave” in the Particulars wherever it occurs is a reference to leave pursuant to an order made by Bleby J on 19 April 2005 in action number 297 of 2004 pursuant to section 39 of the Act. It is preferable that this be expressly incorporated into the particulars.
The other request in the same category is the third request in respect of proceeding 28.
Allegation without evidentiary support
This category relates to the first limb of section 39(5) and involves those aspects of the Particulars which allege that proceedings were instituted without evidentiary support.
This category is exemplified by the third request in respect of proceeding 20. The Particulars subject of this specific request are as follows:
Complaint … makes allegations without evidentiary support.
Mr Kowalski’s request is to identify the allegations in the charge said to have been made without evidentiary support.
During the hearing on Mr Kowalski’s application for further and better particulars, the Attorney‑General clarified that this relates to the allegation in the charge by Mr Kowalski laid before the Tribunal that the practitioner was attempting to extort money (referred to at paragraph 12.32 of the affidavit of the Crown Solicitor’s Office solicitor). The Attorney‑General’s case implicit in the Particulars is that Mr Kowalski had and produced to the Tribunal no evidence in support of this allegation. It is preferable that these matters be expressly incorporated into the particulars.
Attempt to re-litigate determined issues
This category relates to the first limb of section 39(5) and involves those aspects of the Particulars which allege that the subject matter of the underlying proceedings had earlier been conclusively determined so as to preclude re‑litigation.
This category is exemplified by proceeding 30. The Particulars the subject of this request are as follows:
Seeking to re-litigate matters resolved by LPCB.
The Particulars do not identify the previous “resolution” of the matters. I consider that it is necessary for the Attorney‑General to identify the previous “resolution” such that Mr Kowalski has fair notice of the case that he has to meet and to avoid substantial prejudice to him.
The other requests in the same category are the second request in relation to private prosecutions numbered 8, 9 and 10. I reach the same conclusion in relation to these requests for the same reasons as in respect of proceeding 5.
Orchestrated campaign
This category relates to the second limb of section 39(5) and involves those aspects of the Particulars which allege that harassment and annoyance were part of an orchestrated campaign.
This category is exemplified by the third request in respect of proceeding 7. The Attorney‑General alleges that proceeding 7 was instituted in order to harass or annoy legal practitioners. The Particulars the subject of this request are as follows:
Part of an orchestrated campaign against
· persons expressing views contrary to those held by the defendant
· practitioners and firms involved in the defendant’s disputes with MMAL.
Mr Kowalski’s request for further and better particulars seeks identification of each of the orchestrated campaigns.
It is not possible to discern from the Particulars whether it is alleged that proceeding 7 is part of a single orchestrated campaign or is part of two separate orchestrated campaigns. In either event, it is not possible to discern what is the orchestrated campaign and in particular which of the proceedings listed in the Particulars are said to constitute one or both of those orchestrated campaigns.
I consider that Mr Kowalski does not have fair notice in this respect of the case against him and that he will suffer substantial prejudice unless an order is made for further and better particulars.
The other requests in the same category are the last requests in respect of proceedings 8 to 60 inclusive, Industrial Court and private prosecutions numbered 8, 9 and 10. I reach the same conclusion in relation to these requests for the same reasons as in respect of proceeding 5.
To harass or annoy
Where the Attorney‑General is relying on the second limb of section 39(5) (with or without the first limb), the Particulars identify this by including the phrase “Instituted to harass or annoy”. Mr Kowalski seeks particulars of “the proof that the respondent has allegedly instituted proceedings to harass or annoy”. This is exemplified by Mr Kowalski’s first request in respect of proceeding 7.
This request, on its face, seeks particulars of evidence as opposed to the case of the Attorney‑General. As such, it is not an enforceable request for particulars. Only material facts and not evidence are to be pleaded: Rule 98(2)(b) and (d). See, for example, North Western Salt Company v Electrolytic Alkali Co Ltd [1913] 3 KB 422 at 425 per Farwell LJ; East-West Airlines Operations Ltd v The Commonwealth (1983) 49 ALR 323 at 326 per Dawson J.
The other requests in the same category are the first requests in respect of proceedings 7 to 60 inclusive, Industrial Court and private prosecutions numbered 8, 9 and 10.
I observe that, on this application for particulars I am not called upon to determine the merits of the Attorney‑General’s allegations or whether the various matters alleged render the relevant underlying proceedings vexatious within the meaning of section 39(5). These will be issues for trial.
Conclusion
I order that the Attorney-General provide further and better particulars of:
1.the determinations in an earlier proceeding which the Attorney‑General alleges precluded Mr Kowalski from seeking to re‑litigate matters in respect of proceeding 30 and private prosecutions designated 8, 9 and 10;
2.each orchestrated campaign (including the underlying proceedings encompassed within the campaign) the subject of allegations that proceedings 7 to 60 inclusive and private prosecutions designated 8, 9 and 10 were part of an orchestrated campaign against designated persons;
3.the requirement for leave alleged in respect of proceedings 18 and 28;
4.the allegations by Mr Kowalski and the lack of evidentiary support alleged in respect of proceeding 20.
I otherwise dismiss Mr Kowalski’s application for an order for further and better particulars.