Attorney-General (SA) v Kowalski

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SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ATTORNEY-GENERAL (SA) v KOWALSKI

[2025] SASC 102

Judgment of the Honourable Justice Stein  

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS

ESTOPPEL - ESTOPPEL BY JUDGMENT - JUDGMENT OR JUDICIAL DETERMINATION - CONCLUSIVENESS OF JUDGMENT - FINALITY

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - FINALITY OF DECISIONS - DECISIONS OF THE SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL AND ITS PREDECESSORS

Application for permission by a vexatious litigant under s 39(1)(a) of the Supreme Court Act 1935 (SA) to seek redemption of liabilities under ss 42 or 42A of the Workers Rehabilitation and Compensation Act 1986 (SA).

Held (dismissing the application) that:

1.the proposed application has no prospect of success;

2.if instituted, the application would re-agitate matters already conclusively determined against the applicant since the occurrence of relevant events in 1998;

3.the significant passage of time between the relevant events and the application is an additional reason to refuse permission;

4.the application is an abuse of process;

5.any in principle permission to apply to set aside the decision of the Full Bench of the Workers Compensation Tribunal (SA) in Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76 lacks utility and is therefore revoked and, to the extent necessary, the application for permission (FDN 366) is dismissed.

Supreme Court Act 1935 (SA) s 39; Workers Rehabilitation and Compensation Act 1986 (SA) ss 42, 42A, 88H, 89A, 97, 114, 119; Uniform Civil Rules 2020 (SA) r 186.1, referred to.

Josephson v Walker (1914) 18 CLR 691; Workers Rehabilitation and Compensation Corporation v JR Engineering Services Pty Ltd (1995) 180 LSJS 276; Hill v Workers Rehabilitation and Compensation Corporation [1997] SASC 6178; Elekwachi v Russell (Supreme Court of South Australia, Williams J, 27 February 1998, Judgment No. 6558); Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76; Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48; Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153; Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2003] FCAFC 18; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433; Kowalski v Chief Executive Workcover Corporation (Ex Parte) [2005] SASC 481; Kowalski v Davison [2006] SASC 123; Attorney-General v Kowalski [2014] SASC 1; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53; Soden v Kowalski [2011] FCA 318; Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd [2017] SADC 57; Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44; Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95; Kowalski v Sim [2019] SASCFC 96, discussed.

Kowalski v…

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Details
Case
[2025] SASC 102
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Kowalski involved a dispute concerning the validity and binding nature of a settlement agreement between Mr Kowalski and the Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (MMAL). The matter was ultimately brought before the Supreme Court of South Australia, where the court was tasked with determining the enforceability of the Heads of Agreement signed by the parties. The legal issues before the court included whether the agreement was void due to fraud, whether Mr Kowalski had waived his statutory rights to worker’s compensation, and whether the agreement was binding and conclusive under the doctrine of estoppel by judgment.

The court meticulously examined Mr Kowalski's assertions and submissions, particularly those regarding the alleged fraud and misrepresentation during the mediation process. The judge found that Mr Kowalski's claims of being presented with a fabricated document and signing it under duress were not credible. Instead, the court concluded that Mr Kowalski was fully aware of the contents and amendments made to the Heads of Agreement before signing it. The court highlighted that Mr Kowalski had discussed the changes with MMAL’s representatives, understood the implications of the agreement, and willingly signed it. Consequently, the court rejected Mr Kowalski's non est factum claim, affirming the validity and binding nature of the agreement.

The court's reasoning was grounded in the principle of estoppel by judgment, where the finality and conclusiveness of a prior judgment prevent a party from relitigating the same issue. The judge found that Mr Kowalski's claims were inconsistent with the findings and conclusions of previous judgments, which had already established the enforceability of the agreement. The court emphasized that Mr Kowalski's submissions were an attempt to relitigate matters that had been decided against him in previous proceedings. Therefore, the court dismissed Mr Kowalski's claims and upheld the enforceability of the Heads of Agreement.

In conclusion, the court ordered that the Heads of Agreement dated 27 October 1998 remains a valid and binding contract between the parties. The court further held that Mr Kowalski was estopped from challenging the agreement's validity and enforceability. The decision underscored the importance of the finality of judicial determinations and the binding nature of agreements reached through mediation, particularly in the context of estoppel by judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In 2015,[26] Blue J granted Mr Kowalski permission to institute proceedings in the District Court against the trustee of the Fund. Justice Blue was satisfied that Mr Kowalski had a tenable claim against the Fund and/or AMP Superannuation and permission to institute the proposed actions should be granted. [26] Justice Blue’s various rulings on permission applications were not published. Summary judgment application 2015 Following the permission granted by Blue J, Mr Kowalski commenced proceedings in terms reflecting the permission granted. The respondents sought summary judgment, as did Mr Kowalski. The District Court Judge dismissed Mr Kowalski’s application and allowed the respondent’s application for summary judgment.[27] [27] Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd [2017] SADC 57. During the summary judgment application, Mr Kowalski submitted that:·a person could not legally waive or contract out of their statutory rights to worker’s compensation benefits; ·the Heads of Agreement was non est factum; ·the morning after Mr Kowalski received from the mediator a three page heads of agreement in typed script with Mr Walsh’s handwriting, he was presented with the document entitled “Heads of Agreement” which he did not read and which he signed relying on representations made by counsel representing MMAL; ·the counsel fabricated the document and obtained the signatures of he and his wife unconscionably and by fraud; ·Mr Kowalski acted in good faith during the mediation; ·Mr Kowalski applied for a TPD benefit and MMAL did not act in good faith; ·the settlement was an ex gratia payment and a gift, not a TPD benefit; ·the Heads of Agreement was void; ·the Heads of Agreement was fabricated; ·any version of the heads of agreement was void and of no effect and not binding because WorkCover’s consent was not obtained contrary to s 119 of the Act; ·there was no power to make an ex gratia payment as compensation and no-one could contract out of statutory entitlements.[28] [28] Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [153]‑[157]. Judge Muecke made findings which included the following:[29][29] Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [170]‑[178].I do not believe the plaintiff when he told me that in the morning of 27 October 1998 senior and junior counsel acting for Mitsubishi Motors presented to him a fabricated Heads of Agreement and told him to sign it. I do not believe him when he told me that he then signed it without reading it, and that he relied on Mitsubishi’s senior and junior counsel. I find that when the plaintiff told me these things, he was being deliberately untruthful.For what he told me to be the truth, or anywhere near the truth, it cannot explain what the plaintiff refers to as the 2nd version of the Heads of Agreement. This is the one that came before me for the very first time on 12 February 2016 when I admitted the plaintiff’s 10th affidavit as Exhibit P13. In his 10th affidavit, sworn on 8 February 2016, the plaintiff swore: “Recently I discovered a copy of the facsimile that Mr S Walsh QC had faxed to me on 26 October 1998 at 19.05 PM. … I also discovered a copy of a second version of a HoA that was provided to me on 27 October 1998”. He referred in his affidavit to a number of amendments that had been made in the second version to that which was provided to him on 26 October 1998. The plaintiff attached the second version to his affidavit as Exhibit KK-2. I have earlier referred to this. The plaintiff does not swear in his 10th affidavit as to when he “discovered a copy of a second version of the” Heads of Agreement that was provided to him on 27 October 1998, nor does he swear whether or not he read it on 27 October 1998.I am satisfied and find that the plaintiff was, on the morning of 27 October 1998, provided with the second version of the Heads of Agreement which I find was an engrossment, with amendments, of the first version he had been sent by Mr Walsh the evening before. I am satisfied and find that the plaintiff read the second version and that he was well aware of the amendments to it. I find that they were then the subject of discussion between he and the representatives of Mitsubishi Motors. I am satisfied of that because it makes common sense, and because of the changes that were made to the second version before the final version was produced. I am satisfied and find that the plaintiff was at that time aware that the sum of $125,000 odd which was to be paid by MMAL had been changed from the draft version he had received the evening before to an ex gratia payment as compensation. I am satisfied and find that he knew that, and that he knew or assumed that there was a reason for it. It was either because the preamble to paragraph 1 of the first version had been amended by the addition (in Mr Walsh’s handwriting) of the sentence: “Such sum is agreed to be paid with a denial of liability”, or he thought, or it was explained to him, that the agreement could be effected more quickly with that change. Whatever the reason, if there was one, I am satisfied and find that the plaintiff understood and agreed to this change.Further, I am satisfied and find that it was partly because the plaintiff wished it that the proposed new paragraphs 2.4 and 2.5 were deleted and the sum in paragraph 2.2 was restored to the sum that was in the initial draft of the Heads of Agreement that he received by facsimile transmission the evening before.Further still, I am satisfied and find that it was at least consistent with the plaintiff’s wishes that new paragraph 5.4 was included in the second version of the Heads of Agreement as I am satisfied and find that the plaintiff wished that the agreement be given effect to as quickly as possible.I am satisfied and find that after the second version of the Heads of Agreement was discussed and agreed, the final Heads of Agreement was engrossed and was signed by the parties including the plaintiff’s wife. I am satisfied and find that before the plaintiff signed the final agreement he read it and satisfied himself that it was in the form that he had agreed to and that he would be prepared to sign and be bound by its terms. This included an understanding and intention by him that the Superannuation Fund be bound by the terms of the agreement. I find that he signed it on that basis.On these findings I reject the plaintiff’s non est factum claim that his signature to the Heads of Agreement was obtained by fraud or by mistake, or that it is or would be unconscionable to allow it to stand as a valid and binding agreement.My conclusion is that the Heads of Agreement dated 27 October 1998 is a valid and binding agreement and that it is the agreement that was reached between the parties to it and was executed by them on 27 October 1998. I reject the plaintiff’s submissions regarding the fact that there is no “Deed of Release” or that the agreement offends special laws that apply to Heads of Agreement.

Ratio Decidendi

Legal Principle Established

The test for a grant of permission to bring proceedings was articulated by Doyle CJ in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[70] as follows:1.Firstly, does the claim on its face appear to be tenable as a matter of fact or law or to have a possible chance of success?2.Having regard to the circumstances, was there reason to think that the proceedings, if instituted, would give rise to the re-agitation of matters already decided between the parties, that is, would the proceedings be vexatious? It is necessary to consider the relationship of the proposed proceedings with other proceedings that caused the making of the order under s 39. 3.It is not necessary to embark on a preliminary trial of the whole matter, but it is not appropriate to accept assertions of fact without enquiry. It is necessary to consider the relationship between the claim that is sought to be made and other claims for permission. [70] [2006] SASC 159 at [25]-[27].Consideration of FDN 950 Mr Kowalski’s affidavit in support of his interlocutory application referred to Blue J’s settled ruling and exhibited extracts from a number of documents Mr Kowalski asserted supported his interlocutory application. Firstly, he attached a WorkCover case law fact sheet which Mr Kowalski said stood for the proposition that there is no provision in legislation for workers to elect to abandon compensation rights. Mr Kowalski therefore asserted that the Full Court of the Supreme Court of South Australia:has illegally treated the Parliament of South Australia AND ME with the utmost contempt and disrespect on the ground that it has perversely, illegally and fraudulently alleged that I was legally entitled to abandon my workers compensation rights. Mr Kowalski attached extracts of a fact sheet entitled “Both sides of the fence” dated 27 October 2000, stating that MMAL had illegally failed to comply with the fact sheet. Mr Kowalski repeated the assertion set out above. Mr Kowalski attached four pages from Deputy President McCouaig’s judgment in Kowalski v Mitsubishi Motors Australia Ltd[71] which stated at paragraph 119 that the 1998 “settlement did not effect, and did not purport to effect, a redemption of [MMAL’s] asserted liabilities in respect of weekly payments pursuant to the Act or otherwise”. [71] [2001] SAWCT 93. Mr Kowalski repeated the assertion set out above. Mr Kowalski referred to the front page of Blue J’s settled ruling dated 23 January 2014 and stated he informed Blue J that in Josephson v Walker[72] the High Court of Australia found that a worker cannot waive statutory rights. Mr Kowalski again repeated the assertion set out above.[72] (1914) 18 CLR 691. Mr Kowalski attached page 20 of Judge Muecke’s reasons in Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd[73] again repeating the assertion set out above.[73] [2017] SADC 57. Mr Kowalski also attached an email addressed to a number of recipients, including the Chief Justice of the High Court of Australia dated 18 January 2022 which Mr Kowalski said clearly proved the Full Court of South Australia had illegally treated the Parliament of South Australia and Mr Kowalski with “utmost contempt and disrespect on the ground that it has perversely, illegally and fraudulently alleged that I was legally entitled to abandon my workers compensation rights”.