Attorney-General for the State of SOUTH AUSTRALIA v Kowalski (No 3)

[2012] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 3)

[2012] SASC 100

Reasons for Decision of The Honourable Justice Blue

12 June 2012

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL

The Attorney-General seeks a declaration that the defendant has persistently instituted vexatious proceedings pursuant to s 39 of the Supreme Court Act 1935 (SA). The defendant seeks an order that the Court determine as a preliminary issue whether this Court has jurisdiction to stay proceedings in the Legal Practitioners Disciplinary Tribunal.

Held: application dismissed. If the preliminary issue were heard and determined separately, it would still leave the action to proceed in respect of the other relief sought by the Attorney-General pursuant to s 39.

Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Rules 2006 (SA) r 199, r 200, r 211, referred to.
Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309, discussed.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 3)
[2012] SASC 100

Civil: Application

BLUE J.

Preliminary Issue

1. In this action, the Attorney-General seeks a declaration and orders pursuant to section 39 of the Supreme Court Act 1935 (SA) (“the Act”).

2. The substantive relief sought by the Attorney‑General is:

   1.a declaration that Mr Kowalski has persistently instituted vexatious proceedings;

   2.an order pursuant to section 39(1)(a) of the Act that Mr Kowalski be prohibited from instituting proceedings in a prescribed court against any legal practitioner;

   3.a stay pursuant to section 39(1)(b) of the Act of proceedings already instituted in a prescribed court against legal practitioners.

3. Mr Kowalski has made an oral application for an order that the Court determine as a preliminary issue whether this Court has jurisdiction to stay proceedings in the Legal Practitioners Disciplinary Tribunal (“underlying proceedings”). The Attorney‑General opposes the application.

4. Rule 211 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) provides:

   The Court may order the separate trial of an issue of fact or law (or an issue involving mixed questions of fact and law) involved in an action.

   Contentions of the parties

5. Mr Kowalski contends that this Court does not have jurisdiction to stay proceedings in the Tribunal because the Attorney‑General has not exhausted his rights to seek a stay of those proceedings in the Tribunal itself.  Mr Kowalski relies upon the decision of Layton J in Prescott v Legal Practitioners Disciplinary Tribunal.[1]

   [1] [2009] SASC 309.

6. In Prescott, the Board had brought charges against the practitioner in the Tribunal.  The practitioner instituted judicial review proceedings in the Supreme Court for prerogative relief, claiming that it would be an abuse of process or a breach of natural justice for the Tribunal to proceed to hear the charges against him due to delay and other matters.  The Board contended that the Supreme Court did not have jurisdiction to grant the relief sought by the practitioner.

7. It was agreed by the parties that the Court ought to hear and determine, as a preliminary issue, the question of whether the Court did have jurisdiction or, if the allegations were otherwise made out by the practitioner, whether the Court would exercise its discretion to deny prerogative relief.

8. Layton J held that this Court has inherent jurisdiction to stay proceedings in the Tribunal for abuse of process.[2]  She held that the practitioner had not complied with Rules 199 and 200.[3]   She also held that, in any event, there was no proper foundation to grant the prerogative relief sought because the practitioner’s application was premature and hypothetical in that he had not sought a stay or dismissal of the charges in the Tribunal itself.[4]

   [2] [2009] SASC 309 at [48]-[55].

   [3] [2009] SASC 309 at [94]-[97].

   [4] [2009] SASC 309 at [99]-[122].

9. Finally, Layton J held in the alternative that she would not have exercised the discretion to grant prerogative relief because the practitioner had not applied for a stay or dismissal to the Tribunal.[5] 

   [5] [2009] SASC 309 at [123]-[126].

10. Mr Kowalski contends that the reasoning in Prescott is directly applicable as the Attorney‑General seeks a stay of Tribunal proceedings pursuant to section 39(1)(b) of the Act when he has not first sought a stay from the Tribunal in each of the underlying proceedings. Mr Kowalski contends that this question should be heard and determined as a preliminary issue.

11. The Attorney‑General contends that the reasoning in Prescott is confined to judicial review proceedings in the Supreme Court for prerogative relief by a party to the Tribunal proceedings and has no application to proceedings by the Attorney‑General pursuant to section 39 of the Supreme Court Act. The Attorney‑General contends that it is not appropriate or desirable to determine this preliminary issue because it is only capable of affecting part of the relief sought by the Attorney‑General (the stay sought pursuant to section 39(1)(b) and not the order requiring leave for the institution of future proceedings sought pursuant to section 39(1)(a)).

12. When Mr Kowalski’s application was initially argued, he also sought an order for determination of another issue by separate and preliminary trial, namely his contention that no proceedings exist in the Tribunal unless and until a panel is constituted to hear a charge.  However, during a subsequent hearing Mr Kowalski said that his underlying contention in that respect had been erroneous.  I do not therefore address that aspect of Mr Kowalski’s original submissions.

    Consideration

13. If the preliminary issue were to be separately heard and determined in favour of Mr Kowalski, it would still leave the action to proceed in relation to the other relief sought by the Attorney‑General and in particular the order sought pursuant to section 39(1)(a). There would not be a significant reduction in the time devoted to the hearing of the action in the event that the application pursuant to section 39(1)(b) were removed from the action. On the other hand, if the preliminary issue were heard and determined as a separate issue, there would be time and expense incurred in the hearing and determination of the issue and the potential for appeals.

14. In the circumstances, I conclude that it is not appropriate or desirable that I hear and determine the issue as a separate and preliminary issue (as opposed to part of the trial of the action).

15. I express no view one way or the other on the merits of the issue which Mr Kowalski seeks to be heard and determined as a preliminary issue.

    Conclusion

16. I dismiss Mr Kowalski’s oral application for the hearing and determination of a preliminary issue.