Attorney-General for the State of South Australia v Kowalski (No 4) - [2012] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 4)
[2012] SASC 101
Reasons for Decision of The Honourable Justice Blue
12 June 2012
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 a series of declarations and orders to be made in respect of other actions.
Held: the five interlocutory applications are struck out.
Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Rules 2006 (SA) r 4, r 28, r 211; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v KOWALSKI (No 4)
[2012] SASC 101
Civil: Application
BLUE J.
On interlocutory applications

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) (“the Act”).
By interlocutory application FDN 70, Mr Kowalski seeks a declaration that he has a legal right to file a notice for specific directions (and supporting affidavit) in another action and a notice of appeal in another matter which he attempted to file and were rejected for filing by the Registry and an order that the Registrar accept each of them for filing.
By interlocutory application FDN 72, Mr Kowalski seeks a garnishee order in the sum of $1,300 be made against R J Cole and Partners.
By interlocutory applications FDN 68, FDN 74 and FDN 77, Mr Kowalski seeks 15 declarations of his rights against Mitsubishi Motors Australia Limited (“Mitsubishi”), WorkCover Corporation of South Australia (“WorkCover”) and Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (“Mitsubishi Super”).
The Attorney-General contends that no such declarations or orders can be made on interlocutory applications in this action, that the applications are misconceived and that they should be dismissed or struck out.
Interlocutory applications
Interlocutory application FDN 70 paragraph 1
In action number 892 of 1996, Mitsubishi brought judicial review proceedings against review officer Harbord of the Workers Compensation Review Panel and Mr Kowalski seeking an order in the nature of certiorari quashing a decision by Mr Harbord. Mr Harbord’s decision related to claims by Mr Kowalski against Mitsubishi for worker’s compensation.
On 21 November 1996, Debelle J granted relief to Mitsubishi in that action and quashed the decision of review officer Harbord. On 15 July 1997, the Full Court dismissed an appeal from the judgment of Debelle J.
On 5 April 2012, Mr Kowalski lodged at the Registry for filing in action number 892 of 1996 a notice for specific directions and supporting affidavit seeking orders setting aside (pursuant to rule 84.12 of the Supreme Court Civil Rules 1987 (SA)) the judgment of the Full Court and that the Registrar refer the conduct of Mitsubishi’s solicitors to the Attorney‑General and the Tribunal. On 13 April 2012, the Registrar wrote to Mr Kowalski informing him that he had rejected the notice and supporting affidavit on the grounds that they were argumentative, contain submissions and were scandalous, frivolous, vexatious and an abuse of process.
By paragraph 1 of interlocutory application FDN 70, supported by his affidavit FDN 71, Mr Kowalski seeks a declaration and an order in this action that the notice and affidavit are not argumentative, do not contain submissions and are not scandalous, frivolous, vexatious or an abuse of process and the Registrar must accept them for filing in action number 892 of 1996.
I have been assigned the conduct of this action (No 501 of 2011). I have not been assigned the conduct of any other matters (including action number 892 of 1996).
The parties to action 892 of 1996 are Mitsubishi, Mr Harbord and Mr Kowalski. The parties to this action are the Attorney-General and Mr Kowalski.
It is not open to Mr Kowalski to seek in these proceedings a review of a decision of the Registrar in relation to other proceedings involving different parties and a different subject matter. In any event, for reasons developed later in relation to other interlocutory applications, it is not competent to seek a declaration of right by interlocutory application.
Paragraph 1 of interlocutory application FDN 70 is incompetent and will be dismissed.
Interlocutory application FDN 70 paragraph 2
On 30 August 2011, Mr Kowalski filed an Information (action number 216 of 2012) in the Magistrates Court at Christies Beach against RJ Cole alleging criminal offences including robbery/stealing, demanding money by menaces, fraudulent misappropriation and false pretences. On 11 April 2012, a Magistrate dismissed the Information.
On 13 April 2012, Mr Kowalski attempted to file in this Court a notice of appeal against the order of dismissal made by the Magistrate. The Registrar rejected the notice of appeal (and supporting affidavit). I infer from Mr Kowalski’s affidavit that this was said to be on the grounds that it was argumentative, contained submissions and was scandalous, frivolous, vexatious and an abuse of process.
By paragraph 2 of FDN 70, supported by his affidavit FDN 71, Mr Kowalski seeks in this action a declaration and order that the Registrar must accept the notice of appeal for filing.
For similar reasons to the notice (and supporting affidavit) the subject of paragraph 1 of FDN 70, it is not open to Mr Kowalski to seek in these proceedings a review of a decision of the Registrar in relation to other proceedings involving different parties and a different subject matter. In any event, for reasons developed later in relation to other interlocutory applications, it is not competent to seek a declaration of right by interlocutory application.
Paragraph 2 of FDN 70 is incompetent and will be dismissed.
Interlocutory application FDN 72
On 6 August 1996, the Workers Compensation Appeal Tribunal dismissed Mr Kowalski’s appeal against a determination of a review officer dated 9 March 1994 which in turn affirmed a determination by Mitsubishi rejecting Mr Kowalski’s claim for worker’s compensation.
In action no 297 of 2004, Mitsubishi instituted an action against Mr Kowalski seeking orders pursuant to section 39 of the Act. On 19 April 2005, an order was made in that action that Mr Kowalski was prohibited from instituting further proceedings against Mitsubishi. On 15 September 2006, an order was made in that action that no further application, except an appeal, is to be brought by Mr Kowalski in that action unless he first pays to Mitsubishi $1,300 on account of costs.
On 26 April 2012, Mr Kowalski attempted to file in action no 297 of 2004 a notice for specific directions (and supporting affidavit) seeking pursuant to section 39(3) of the Act a variation of the orders made on 19 April 2005 so as to permit him to file an application for leave to appeal to the Full Court against the decision of the Workers Compensation Appeal Tribunal made on 6 August 1996 (and an extension of time in which to do so). On 11 May 2012, the Registry wrote to Mr Kowalski, informing him that the notice for specific directions (and supporting affidavit) was rejected and that he must first file proof in an affidavit that $1,300 has been paid to Mitsubishi.
At least as at December 1995, RJ Cole and Partners were holding $9,118.45 in their trust account ledger on account of Mr Kowalski’s claim for personal injury. It is possible that they still hold at least $1,300 of those monies in their trust account.
By FDN 72, supported by his affidavit FDN 73, Mr Kowalski seeks an order in this action that a garnishee order in the sum of $1,300 be made against RJ Cole and Partners. Mr Kowalski seeks the garnishee order for the purpose of obtaining funds with which to pay $1,300 to Mitsubishi, so that in turn he can resubmit the notice for directions and supporting affidavit in Action 296 of 2004.
Garnishee orders may be made pursuant to section 6 of the Enforcement of Judgments Act 1991 (SA) and rule 316 of the Supreme Court Civil Rules 2006 (SA).[1] Application is to be made by a judgment creditor. Mr Kowalski has not claimed that he is a judgment creditor as against RJ Cole and Partners. If he is, the appropriate procedure is to make application in the action in which judgment was granted (or if in another court, then by originating proceedings in this Court).
[1] Mr Kowalski did not indentify any other applicable statutory source of power to make a garnishee order.
It is therefore not open to Mr Kowalski to seek in these proceedings a garnishee order against R J Cole and Partners. Paragraph 1 of FDN 72 is incompetent and will be dismissed.
Interlocutory applications FDN 68, 74 and 77
By paragraphs 1-9 of interlocutory application FDN 68 supported by his affidavit FDN 69, Mr Kowalski seeks in this action declarations that:
1.he is entitled to be paid worker’s compensation by Mitsubishi or Workcover and a TPD benefit from his superannuation fund;
2.decisions of a review officer and of the Workers’ Compensation Tribunal give rise to issue estoppel in favour of Mr Kowalski’s contentions;
3.the frustration of Mr Kowalski’s contract of employment with Mitsubishi in 1994 gave rise to Mr Kowalski’s entitlement to a TPD benefit from his superannuation fund;
4.a Heads of Agreement between Mitsubishi and Mr Kowalski dated 27 October 1998 does not stand in the way of those entitlements;
5.certain decisions of the Workers’ Compensation Tribunal, District Court and this Court are void and do not stand in the way of those entitlements.
By paragraphs 1-4 of interlocutory application FDN 74 supported by his affidavit FDN 75, Mr Kowalski seeks in this action declarations that the Workers Compensation Tribunal erroneously decided in [2001] SAWCT 93 and [2001] SAWCT 102 that it had jurisdiction to determine Mr Kowalski’s applications in relation to worker’s compensation.
By paragraphs 1 and 2 of interlocutory application FDN 77 supported by his affidavit FDN 78, Mr Kowalski seeks declarations that from 16 March 1994 onwards he was not a “worker” within the meaning of the Workers Rehabilitation and Compensation Act 1986 (SA) and hence the Workers Compensation Tribunal had no jurisdiction to hear or determine certain proceedings between Mr Kowalski and Mitsubishi.
Mr Kowalski seeks each of the declarations by interlocutory applications. Rule 131(1) requires an interlocutory application to be in an approved form which, pursuant to Chapter 14 of the Practice Directions, is FM16.
Rule 4 of the Supreme Court Civil Rules 2006 (SA) defines an “interlocutory proceeding” to mean a proceeding (in which an order or direction is sought) of one of the following kinds:
(a)a proceeding that is preliminary or ancillary to an action or appellate proceeding, or an intended action or appellate proceeding, in the Court;
(b)a proceeding for an order or direction about the course or conduct of an action or appellate proceedings;
(c)a proceeding related to the enforcement of a judgment.
By contrast, Rule 28 defines an “action” to be:
A proceeding in the Court (other than an interlocutory or appellate proceeding) in which a person (the plaintiff) asks the Court to make a final determination of a judiciable issue or to exercise any other power vested in the Court.
The substantive declarations, if made, would effectively declare rights as between Mr Kowalski on the one hand and Mitsubishi, Workcover and Mitsubishi Super on the other. Substantive declarations of right are actions, and not interlocutory proceedings, within the meaning of the Rules. It follows that it is not competent to seek a declaration of right by interlocutory application.
If Mr Kowalski wishes to seek the declarations which are sought by interlocutory applications FDN 68, 74 and 77, he would (subject to obtaining any necessary permission) need to institute an action against the parties affected and sought to be bound by the declarations, namely Mitsubishi, Workcover and Mitsubishi Super.
For these reasons it is not open to seek in these proceedings declarations which he seeks on the interlocutory applications. The interlocutory applications are incompetent and will be dismissed.
Application for separate trial
During the hearing on the interlocutory applications, Mr Kowalski made an oral application in the alternative to his written applications that the Court determine as preliminary and separate issues in this action as between the Attorney‑General and himself the 15 contentions in respect of which he is seeking declarations of right in interlocutory applications FDN 68, 74 and 78.
Rule 211 of the Supreme Court Civil Rules 2006 (SA) 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.
I consider that an order for a separate trial of those 15 issues would involve fragmentation of the action without any saving of time or cost and would increase the time required to be spent by the parties and the Court.
I express no view one way or the other on the merits of the 15 issues which Mr Kowalski seeks to be heard and determined as preliminary issues.
I dismiss Mr Kowalski’s oral application for the hearing and determination of preliminary issues.
Conclusion
I dismiss interlocutory applications FDN 68, 70, 72, 74 and 77. I dismiss Mr Kowalski’s oral application for the hearing and determination of preliminary issues.