Attorney-General (SA) v Kowalski
[2025] SASC 102
•18 June 2025
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 Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2006] SASC 159, considered.
ATTORNEY-GENERAL (SA) v KOWALSKI
[2025] SASC 102Civil: Application (FDN 950)
STEIN J: Since Mr Kowalski was declared a vexatious litigant over 10 years ago, he has filed a plethora of interlocutory applications seeking permission to commence litigation in various forms. Many of those interlocutory applications have related to historical claims by Mr Kowalski against Mitsubishi Motors Australia Ltd (“MMAL”)[1] alleging entitlements said to arise from various work-related injuries. Mr Kowalski has also repeatedly applied to the Court to correct prior decisions. Mr Kowalski’s interlocutory application (FDN 950) the subject of this decision is yet another attempt to obtain permission to re-litigate issues previously decided adversely to Mr Kowalski.
[1] Justice Blue’s rulings refer to Mitsubishi Australia Pty Ltd as “Mitsubishi”, thus there are references to the same entity as Mitsubishi or MMAL in this judgment.
In this interlocutory application, Mr Kowalski sought permission to seek redemption of liabilities despite various decisions which preclude that outcome. He attempted to elevate observations in a ruling made by Blue J to findings of fact. He sought to challenge the correctness of findings of fact, observations or conclusions in a number of prior decisions on the basis of contentions which have been previously addressed and determined against him. Those contentions included arguments based on the circumstances in which Mr Kowalski entered into a settlement agreement in October 1998, the construction of that agreement, arguments arising from purported consequences flowing from an assertion that MMAL had rejected his heart attack claim in 1998 and arguments based on the interpretation of legislation and various authorities. I address those arguments below.
For the reasons below, I have determined to dismiss the application. The application for redemption Mr Kowalski seeks to commence has no prospect of success; if instituted, the application would give rise to re-agitation of matters already conclusively determined against Mr Kowalski and the relevant events occurred in 1998. All of these reasons individually, and in combination, warrant the dismissal of Mr Kowalski’s interlocutory application.
Interlocutory application
Mr Kowalski’s interlocutory application (FDN 950) seeks permission under s 39(1)(a) of the Supreme Court Act 1935 (SA) to apply for a redemption under ss 42 or 42A of the Workers Rehabilitation and Compensation Act 1986 (SA) (“Act”) of MMAL and ReturnToWorkSA (“RTWSA”) “statutory liabilities to Mr Kowalski”. The application is said to be made “in view of the facts found in paragraphs 45 and 46 of Blue J’s ruling” 37[2] settled 5 April 2024.
[2] Mr Kowalski refers to ruling 37S but the quote in question is contained in ruling 37, also dated the same day.
In this ruling, Blue J stated:
Mr Kowalski refers to my ruling dated 19 dated 26 May 2021 in which I concluded that there was no redemption under sections 42 or 42A of Mitsubishi’s liabilities to it. He contends that he is therefore entitled to apply for a redemption.
Leaving aside the Full Court’s holding about the validity and effect of the Heads of Agreement in precluding claims, if Mr Kowalski wishes to institute a proceeding seeking redemption, he would need to make an interlocutory application under section 39 of the Supreme Court Act for permission to do so. This matter cannot be raised on an application to correct my ruling 27.
In order to place Mr Kowalski’s assertions in context to assess how they relate to issues which have been raised and addressed in the past, I have reviewed the reasons for judgment in a number of first instance and Full Court decisions of this Court and the Workers Compensation Tribunal (“Tribunal”). The decisions to which I refer below are relevant to this application but are by no means an exhaustive recitation of all proceedings or permission applications instituted by Mr Kowalski.[3]
[3] I have not included reference to all decisions involving MMAL nor to any of the many matters involving legal representatives.
Background
Mr Kowalski was employed by MMAL in 1964.
Mr Kowalski made various claims against MMAL arising out of an asserted eye injury in December 1986, a right middle finger injury in May 1988, a back injury in May 1989 and emotional distress in August 1991.
Mr Kowalski received periodic payments from the Mitsubishi Superannuation Fund (“Fund”) for total temporary disablement between April 1992 and February 1994.
In March 1994, MMAL wrote to Mr Kowalski stating his contract of employment was frustrated and was at an end.
In 1994, a Review Officer rejected Mr Kowalski’s claim of entitlement to compensation in relation to emotional distress. Mr Kowalski successfully appealed the determination. MMAL then obtained leave to appeal and the Full Court of the Supreme Court set aside the decision. The matter was remitted to the Workers Compensation Appeal Tribunal which found the grounds of appeal could not be sustained.
Mr Kowalski made claims in relation to a heart attack he suffered in December 1997 which Mr Kowalski claimed was the result of stress caused by ongoing litigation with MMAL. He also made a claim for bilateral carpal tunnel syndrome in December 2003. These two injuries postdated the cessation of Mr Kowalski’s employment with MMAL.
I address the background to the heart attack claim in greater detail below.
Mr Kowalski issued an action seeking damages in the District Court against MMAL in relation to his 1989 back injury. Mr Kowalski was unsuccessful.
In October 1998, the parties engaged in a formal mediation.
Justice Bleby[4] in a judgment in 2005 described the disputes in existence between the parties at the time of the mediation in the following terms.
[4] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [132]-[148]. These proceedings sought a vexatious litigant declaration against Mr Kowalski.
The purpose of the parties participating in a formal mediation was to attempt to resolve the outstanding issues between the parties and come to an agreement whereby all disputes would be settled and brought to a close.
The issues which were to be the subject of the mediation in October 1998 included the eye injury, the right middle finger injury, the back injury, the emotional distress and the heart attack. Also included were any matters relating to the termination of Mr Kowalski’s employment at Mitsubishi, any outstanding sick leave and any superannuation and superannuation ill health benefits payable to Mr Kowalski.
At the time of the mediation there were numerous proceedings which were at the time unresolved.
The first matter which was outstanding at the time of the mediation was notification of an alleged industrial dispute in the Australian Industrial Relations Commission (No.20498 of 1994) brought on Mr Kowalski’s behalf by the Automotive, Foods, Metals and Engineering Union in relation to the cessation of Mr Kowalski’s employment as a result of alleged frustration of contract. The hearing was adjourned pending the determination of Mr Kowalski’s claims for compensation. A notice of discontinuance was lodged on 9 November 1998 following the mediated settlement.
The second outstanding matter was a continuation of the estoppel dispute following on from the decision of the Full Court (decision No.18 above). Doyle CJ with Matheson and Olsson JJ concurring determined that the matter should be remitted to a Review Officer for further consideration of Mr Kowalski’s estoppel argument and this had not occurred at the time of the mediation and in fact never occurred. The plaintiff submits that Mr Kowalski was highly unlikely to have been successful in any event given the comments made by Doyle CJ regarding the inherent factual difficulties Mr Kowalski faced.
Another matter which was outstanding was an appeal by Mr Kowalski from the decision of Judge McCusker (decision No.13) relating to the setting aside of consent orders made as a consequence of the failed 1992 settlement. The plaintiff submits that this proceeding was also highly unlikely to be successful.
Also outstanding was a Notice of Dispute lodged by Mr Kowalski in the Tribunal (Action No.748 of 1997) by which Mr Kowalski sought the payment of interest and leave entitlements. This action was dismissed by consent by Gilchrist DPJ on 28 October 1998 following the mediated settlement.
Another Notice of Dispute lodged by Mr Kowalski in the Tribunal which was outstanding at the time of the mediation (Action No.3673 of 1997) was a claim for income maintenance payments in relation to the 2% loss of function of the right middle finger. Mitsubishi had determined to reject the claim for income maintenance and the plaintiff still maintains that it was highly unlikely to be successful given the low level of disability. This action was also dismissed on 28 October 1998 by consent following the mediated settlement.
A further outstanding matter was an action brought by Mr Kowalski in the Industrial Relations Court of South Australia (Action No.548 of 1997) by which Mr Kowalski sought payment for sick leave. The action had been dismissed by Magistrate Gun (see decision No.21). However Mr Kowalski appealed against that decision and the appeal had not been dealt with at the time of the mediation. The plaintiff submits that the appeal had little prospect of success.
There were a further three Notices of Dispute lodged by Mr Kowalski in the Workers Compensation Tribunal which had not been resolved at the time of the mediation. These were another claim for income maintenance in relation to the right middle finger injury (Action 4174 of 1998), a claim relating to an alleged failure by WorkCover to comply with a s 107B application to disclose documents (Action 4961 of 1998) and a claim alleging a left leg disability related to the 1989 back injury (Action 4529 of 1998). Following the mediation, these claims were dismissed by consent on 28 October 1998. Mr Kowalski attempted to revive them via a s 88H application lodged on 9 January 2001 but all of the claims were eventually dismissed by the Full Bench on 19 August 2002 (see decision No.30).
Also outstanding at the time of the mediation was a s 97 application (Action 4163 of 1998) lodged by Mr Kowalski in the Tribunal seeking an expedited decision in relation to compensation for his heart attack. This application led to further litigation following the mediated settlement (see decisions No.23, 25, 27 and 30).
The final outstanding matter at the time of the mediation was an action in the Federal Court of Australia (Action No.SG100 of 1997) in which Mr Kowalski alleged unfair dismissal and sought an extension of time in which to issue proceedings pursuant to s 170EA of the Industrial Relations Act 1988. The application was dismissed by von Doussa J on 16 October 1998 on the basis that the Federal Court had no jurisdiction to deal with it. At the time of the mediation it was unclear whether Mr Kowalski would pursue the matter in the Australian Industrial Relations Commission.
The plaintiff submits that although it viewed the outstanding litigation as having very little merit, all of the issues raised by Mr Kowalski therein were open to negotiation and were intended to be encompassed by the mediated settlement.
The plaintiff claims that it did not accept, at the time of the mediation, that it had any outstanding liability to the defendant in relation to work-related injuries except as follows:
1. $3,000.00 damages payable in respect of the eye injury;
2. $289.60 for non-economic loss resulting from a 2% loss of function of the right middle finger;
3. $122.00 for medical expenses (Mr Wicks);
4.$33.00 for medical expenses (Dr Hughes);
5.$657 WCT costs order 20 December 1996 ; and
6.$613 WCAT allocatur for costs 1 August 1997.
There was also an amount of $350 in dispute for a report by Dr Moss which Mitsubishi claimed it had reimbursed to Mr Kowalski. This was later accepted by the District Court in decision No.29. However, Mr Kowlaski denied having received the amount. The plaintiff claims that, although it maintained that the $350 had been paid already, the settlement was intended to cover this amount.
Importantly, the plaintiff denied it had any liability pursuant to the Compensation Act to pay the defendant weekly income maintenance and thus never sought to redeem any such liability via the mediated settlement or indeed at all.
The plaintiff claims that at the time of the mediation, the defendant owed it $63,882.28 (of which $24,154.67 was taxed and owing) pursuant to the various costs orders made against him. The plaintiff claims that the defendant owed a further $9,118.45 which had been paid to his solicitors as part of the failed settlement in 1992, and which should have been, but was not, reimbursed to Mitsubishi.
The mediation occurred on 26 October 1998 and was presided over by an experienced and well-respected Queen’s Counsel. Ms Layton QC and Mr R Bönig represented Mitsubishi at the mediation. Two employees from Mitsubishi’s human resources department were also present. Mr Kowalski attended in person and was accompanied by his accountant, Mr P Bennett and a lay representative, Ms P Dean of Disability Action Inc. Mitsubishi had offered to pay for legal representation for Mr Kowalski. However no lawyer attended on his behalf. Mitsubishi subsequently agreed to pay Mr Bennett’s costs of attending the mediation.
At the mediation, settlement was reached.
On 27 October 1998, MMAL and Mr and Mrs Kowalski executed a document entitled “Heads of Agreement”. I will refer to the 27 October 1998 executed Heads of Agreement as the “Heads of Agreement”.
Issues previously raised by Mr Kowalski concerning prior versions of the Heads of Agreement have been addressed in a number of decisions. I refer to those documents and decisions below.
The terms of the Heads of Agreement were set out in the Full Court decision in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[5] as follows:[6]
[5] [2018] SASCFC 44.
[6] [2018] SASCFC 44 at [24].
Heads of Agreement dated 27 October 1998
HEADS OF AGREEMENT
WHEREAS:
1. Kazimir Kowalski (“Kowalski”) of 26 Nalimba Street Hallett Cove in the State of South Australia and Mitsubishi Motors Australia Limited (MMAL) of Sherriffs Road Lonsdale in the said state have on the 26th day of October 1998 entered into a mediation.
2. Kowalski and MMAL have entered the mediation with the intent of trying to resolve all issues both current and future in dispute between them.
3. Kowalski and MMAL have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement.
THE PARTIES HAVE AGREED THAT:
1.Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1 Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997
1.2 Any outstanding sick leave
1.3 Any matters related to the termination of his employment with MMAL
1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.
2.The said sun of $200,000 is to be paid to Kowalski as follows:
2.1 The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment
2.2 The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above
2.3 The sum of $10,000 to be paid by MMAL in consideration of Kowalski forgoing any claims or future claims in any way arising from his employment
3.In consideration of the matters set out in paragraphs 1 and 2 above, MMAL agrees
3.1 To forgo recovery of legal costs which are owed by Kowalski and agrees not to seek repayment from Kowalski of monies previously paid by MMAL or the Superannuation Fund including the monies paid to R J Cole & Partners with respect to Action 185 of 1992 in the Industrial Court
3.2 To comply with any Court orders for discovery and or subpoenas for witnesses in relation to any action taken by Kowalski against R J Cole & Partners
3.3 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
3.4 To prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission.
4.In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1 Not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against R J Cole & Partners and Dowd.
4.2 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
4.3 To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL
4.4 To execute all documents necessary to bring into effect this agreement and to make such personal attendances required at any Court, Tribunal or Commission
4.5 That any amounts payable to the Australian Taxation Office from the sum of $200,000 are to be borne by Kowalski.
5.The parties agree that payment of the sums in paragraphs 1 and 2 will be made in the following manner:
5.1 Fountain & Bönig are to make arrangements for all matters requiring personal attendance by the parties to achieve discontinuance of those proceedings to be called on and the parties shall thereupon attend and effect discontinuance of those proceedings
5.2 As to the matters which do not require personal attendance, Fountain and Bönig will prepare the necessary documentation for discontinuance or consent orders
5.3 Upon satisfaction of 5.1 above, Kowalski shall sign all documents prepared pursuant to clause 5.2 above whereupon bank cheques for the total sum of $200,000 are to be handed to Kowalski (less any taxation that must be deducted by the Superannuation Fund).
5.4 It is the intention of the parties that the terms of this agreement be given effect to as quickly as possible and within 14 days of the date of this agreement save where beyond the control of the parties because of the need to attend personally at any Court Tribunal or Commissioner.
After the Heads of Agreement were executed, various orders were made by consent dismissing Mr Kowalski’s various actions. On 3 November 1998, Conciliation Officer Richer dismissed by consent Mr Kowalski’s application relating to his heart attack.
In November 1999, Mr Kowalski filed an application in the Tribunal under s 88H of the Act to set aside the consent determinations dismissing his heart attack/depression claims. Mr Kowalski alleged that MMAL had not acted in good faith before entering into the Heads of Agreement and the consent determinations were obtained by fraud, misrepresentation and unconscionable conduct and parts of the Heads of Agreement were rendered void by s 119 of the Act as purporting to exclude, modify or restrict the operation of the Act.
Justice Bleby later described that application as entailing Mr Kowalski seeking declarations that selected parts only of the Heads of Agreement were null and void as that would have left Mr Kowalski free to pursue his compensation claim in relation to the heart attack as well as to pursue a claim for relief in relation to the termination of his employment.[7]
[7] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [152].
MMAL raised a question whether the Tribunal had jurisdiction to address Mr Kowalski’s application. In February 2000, Deputy President McCouaig held the Tribunal had jurisdiction to determine whether the consent determinations should be set aside. MMAL appealed to the Full Bench and Mr Kowalski filed a cross-appeal. On 15 August 2000, the Full Bench of the Tribunal dismissed MMAL’s appeal, holding the Tribunal had jurisdiction to hear the application to set aside the consent determinations. However, it concluded the Tribunal did not have jurisdiction to make orders or declarations in relation to the Heads of Agreement. The Full Bench dismissed Mr Kowalski’s cross-appeal.
In August 2001, following the Full Bench decision, Deputy President McCouaig delivered reasons for judgment on Mr Kowalski’s application to set aside the consent determinations. Mr Kowalski’s grounds for setting aside the consent determinations included that the determination of Conciliation Officer Richer on 3 November 1998 was obtained by MMAL’s fraud, misrepresentation and unconscionable conduct. Mr Kowalski also sought an order setting aside, revoking, or declaring a nullity the determination of Conciliation Officer Richer on the grounds that MMAL had already made a determination to reject Mr Kowalski’s heart attack claims, or alternatively, the settlement reached by the parties on 27 October 1998 constituted a determination by MMAL of the heart attack claims, with the effect that the prior determination by MMAL overtook Conciliation Officer Richer’s jurisdiction. Mr Kowalski also sought an order declaring void specific parts of the Heads of Agreement, in particular, paragraphs 1.1 and 2.3, on the basis they were contrary to the Act.
Deputy President McCouaig dismissed Mr Kowalski’s application.
The Deputy President found there was no evidence MMAL engaged in fraud, misrepresentation, unconscionable conduct or bad faith and held the Heads of Agreement did not purport to exclude, modify or restrict the operation of the Act within the meaning of s 119. The findings made by Deputy President McCouaig included:
·Rejection of Mr Kowalski’s assertion he was disadvantaged by not having access to a particular medical report.
·A conclusion that the promotion by Mr Kowalski of the importance of that report was not prompted by a belief that he had been deceived when he settled with MMAL but rather that it might provide a means of re-agitating the settlement or reviving his heart attack claim.
The argument that the settlement amounted to, or included a redemption of, MMAL’s liability for weekly payments pursuant to s 42 of the Act was rejected on the basis that the settlement did not effect, and did not purport to effect, a redemption of asserted liabilities for weekly payments pursuant to the Act or otherwise.
In 2005, Bleby J described Mr Kowalski’s attitude to the decision of the Deputy President in the following terms.[8]
Mr Kowalski was obviously unwilling to accept the findings of McCouaig DP that his claims against Mitsubishi were effectively finalised, in accordance with the requirements of the Compensation Act, via the 1998 mediated settlement. Indeed Mr Kowalski has continued to maintain his arguments relating to ss 42, 119 of the Compensation Act and to the Workers Compensation Tribunal Rules to this day.
[8] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [179].
Mr Kowalski filed a notice of appeal from Deputy President McCouaig’s decision.
In February 2002,[9] the Full Bench of the Tribunal heard Mr Kowalski’s appeal against the Deputy President’s decision along with a number of other matters relating to nine separate claims which were ongoing at that time. One such application was to set aside other consent orders made following the Heads of Agreement including the consent orders in relation to Mr Kowalski’s back injury. That matter raised similar arguments to those mounted in the attack on Conciliation Officer Richer’s consent orders.
[9] See Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76.
On 19 August 2002,[10] the Full Bench dismissed all of Mr Kowalski’s appeals, including against the Deputy President’s decision, and dismissed all the other applications and notices of dispute. Among other things, President Jennings agreed the findings of the Deputy President were open to him on the evidence. Deputy President McCusker concluded the attempts to set aside the consent orders must fail; there was no substance to the challenges and the attempt to revive the heart attack claim was an attempt to circumvent the settlement of the claims and Conciliation Officer Richer’s orders and constituted an abuse of process.
[10] Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76.
In 2003,[11] Deputy President McCouaig struck out Mr Kowalski’s application made in March 2003 for an expedited decision in respect of claims for re-instatement and back payment of weekly payments. The Deputy President held the claims for compensation were finalised by the Heads of Agreement in October 1998 and Mr Kowalski was seeking, impermissibly, to re-litigate the validity of the Heads of Agreement which had been conclusively determined by the Full Bench in August 2002. Costs were ordered on an indemnity basis, with Deputy President McCouaig stating that Mr Kowalski’s pursuit of further claims was:[12]
well beyond the action of a reasonable litigant. It is, in my view, the action of someone who will simply not accept the decision of the final referee…
[Mr Kowalski] should, in his own interest, accept that his entitlements to compensation arising from his employment ...are finished.
[11] See Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48.
[12] Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48 [15]-[17].
In addition to the proceedings referred to above, Mr Kowalski instituted a significant number of other actions in the Tribunal, the District Court and the Federal Court. In the Federal Court, Mansfield J referred to any rights Mr Kowalski may have had against MMAL at common law as having no prospect of success in the face of the Heads of Agreement. On appeal, the Full Court of the Federal Court[13] observed that viewing the Heads of Agreement as simply involving a diminution of Mr Kowalski’s statutory rights was a misunderstanding and the Heads of Agreement provided a complete defence.
[13] See discussion in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [270]-[272].
Vexatious litigant proceedings 2005 (first Supreme Court vexatious litigant proceedings)
In Mitsubishi Motors Australia Ltd v Kowalski,[14] Bleby J considered an application by MMAL to have Mr Kowalski declared vexatious pursuant to s 39 of the Supreme Court Act.
[14] [2005] SASC 154.
Justice Bleby addressed a number of matters raised by Mr Kowalski as justifying the proceedings he had commenced and which Mr Kowalski claimed provided a defence to the vexatious litigant declaration proceedings. His Honour stated as follows:[15]
In the proceedings before Deputy President McCouaig …the defendant had argued that the heads of agreement entered into by the parties amounted to or included a redemption of the plaintiff’s liability in respect of weekly payments pursuant to s 42 of the Compensation Act; that the plaintiff had failed to comply with the requirements of s 42 and that the purported redemption was therefore null and void. In response, the Deputy President found that the settlement did not effect and did not purport to effect a redemption of the plaintiff’s asserted liabilities in respect of weekly payments pursuant to the Act or otherwise: see para.[119]. The defendant subsequently and in these proceedings sought to use that finding to demonstrate that there was an unfulfilled liability on the part of the plaintiff to redeem the plaintiff’s liability to make weekly payments of compensation to the defendant.
The defendant’s argument is misconceived. It does not follow from the fact that there has been no redemption under s 42 that there remains a liability on the part of the plaintiff to redeem. The heads of agreement recorded the plaintiff’s denial of any liability to the defendant for weekly payments and agreed, for consideration expressed in the agreement, that the defendant’s claim for weekly payments should be dismissed, as it was. The defendant’s subsequent claims for redemption have been dismissed by the Tribunal and cannot now be resurrected. It would appear that the dismissal was entirely justified.
The defendant has claimed and continues to claim that the plaintiff’s liability to him under the Compensation Act cannot be reduced because of the ex gratia payment identified in the heads of agreement and which he received at the time. He seeks to argue that the plaintiff has not paid him the compensation to which he was entitled because the plaintiff included those amounts in the ex gratia payment. By virtue of s 114 of the Compensation Act that payment is to be ignored. That argument has been rejected in the Tribunal and cannot now be revived. In any event, it has no substance. The plaintiff’s liability for compensation at the time of the heads of agreement was more than satisfied by the payment of $10,000 identified in clause 2.3 of the heads of agreement. It would appear that the settlement and subsequent dismissal of the various claims have satisfied any liability for weekly payments and that there has never been any liability to redeem.
…
The defendant argues that the heads of agreement are invalid because they were entered into without the consent of the WorkCover Corporation. The agreement was therefore a contract to avoid the Act and was void and of no effect by virtue of s 119 of the Compensation Act. This was an argument put to and rejected by Deputy President McCouaig in decision No.25 above, although at the time it was put in support of declaring only parts of the agreement null and void, as it appeared that the defendant wished to retain all the benefits that he had gained under the agreement but not to be bound by its restrictions. The Deputy President found that the heads of agreement did not constitute a contract which purported to exclude, modify or restrict the operation of the Compensation Act. That finding was upheld by the Full Bench of the Tribunal on appeal. That decision is final and, with respect, was plainly correct. There never has been any substance in this argument of the defendant.
(My emphasis)
[15] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [282]-[284], [286] (emphasis added).
After referring to the history of proceedings, including those which I have set out above, Bleby J observed:
Despite these findings, the defendant has continued to argue in various forums that parts of the Heads of Agreement are invalid and should be set aside. He is unwilling to accept that his arguments have been found, on numerous occasions, to be misguided and wrong and so he pursues them relentlessly. The defendant also continues to assume that he is automatically and without question entitled to certain rights, for example to income maintenance, when this assumption is incorrect.
On 19 April 2005, after reviewing 45 prior sets of proceedings, Bleby J made an order prohibiting Mr Kowalski from instituting proceedings against MMAL, related corporations or employees or agents without leave of the Court.
Justice Bleby’s conclusion included the following:[16]
The plaintiff has succeeded in demonstrating that the defendant has persistently instituted vexatious proceedings. There is no indication that the defendant has ceased doing so. Indeed, the fact that he has continued to do so since these proceedings were instituted and the manner in which he conducted his case in this Court would suggest that he has every intention of continuing to institute such proceedings until someone recognizes the validity of what now must be described as hopeless claims.
[16] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [294].
Mr Kowalski appealed Bleby J’s decision. In November 2005,[17] the Full Court dismissed Mr Kowalski’s appeal against Bleby J’s orders.
[17] Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433.
On 16 September 2005, Mr Kowalski sought judicial review against the Chief Executive Officer of the WorkCover Corporation of South Australia (“WorkCover”), seeking an order to compel her to determine whether the Heads of Agreement purported to exclude, modify, or restrict the operation of the Act. Leave was refused to issue the summons in the judicial review proceedings. On 19 December 2005, [18] Duggan J dismissed Mr Kowalski’s appeal against the order of the Master refusing leave to issue the proposed summons in the judicial review proceedings. This was on the basis the Chief Executive Officer had no duty to give consideration to the Heads of Agreement and an order could not advance any right or action Mr Kowalski wished to pursue. In April 2006,[19] the Full Court dismissed Mr Kowalski’s appeal against Duggan J’s dismissal of his appeal, holding that WorkCover had no obligation to consider whether the Heads of Agreement was void under s 119 of the Act. The Full Court concluded the proposed proceedings raised a claim that was clearly untenable, and the claim was frivolous and vexatious.
[18] Kowalski v Chief Executive Workcover Corporation (Ex Parte) [2005] SASC 481.
[19] Kowalski v Davison [2006] SASC 123.
In 2006, Mr Kowalski was granted leave to institute proceedings in the District Court against the Fund claiming entitlement to total and permanent disability benefits. That grant of leave was set aside by Doyle CJ in June 2006.[20]
[20] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2006] SASC 159.
Vexatious litigant proceedings 2012 (second Supreme Court vexatious litigant proceedings)
In Attorney-General v Kowalski,[21] Blue J addressed an application by the Attorney-General seeking a declaration that Mr Kowalski had persistently instituted vexatious proceedings and orders prohibiting Mr Kowalski from instituting future proceedings without the permission of the Court. Justice Blue made orders prohibiting Mr Kowalski from instituting future proceedings without permission and staying existing proceedings other than specified proceedings which Blue J found were not vexatious.[22]
[21] [2014] SASC 1.
[22] Justice Blue attached to his reasons a table which identified the various proceedings and summarised his conclusions about them.
In order to address the application by the Attorney-General, Blue J engaged in a detailed review of proceedings in which Mr Kowalski had been engaged and canvassed the background to some of the disputes.
Justice Blue concluded that Mr Kowalski had instituted 63 vexatious proceedings in 12 years. In many of those cases, Mr Kowalski instituted appeals from the first instance decisions and, in several, sought to relitigate issues already conclusively determined against him. Justice Blue observed that after Mr Kowalski was met with binding decisions, he continued to litigate the same or related issues time and time again against those parties in circumstances which rendered the litigation vexatious. Justice Blue concluded the pursuit of the litigation had become an obsession and compulsion and he concluded that Mr Kowalski had persistently instituted vexatious proceedings.
Workers Compensation legislation – relevant provisions
In the first Supreme Court vexatious proceedings litigation, Bleby J described the relevant provisions of the legislation as follows.[23]
[23] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [36]-[43].
Because most, but not all, of the proceedings said to be vexatious were proceedings in the Workers Compensation Tribunal, it is necessary to refer briefly to the position of the plaintiff under that Act and to some of the relevant provisions of the Act in order to understand the nature of those proceedings.
The plaintiff was at all material times an exempt employer under the Compensation Act. This meant that it was entitled, by virtue of s 63 of the Compensation Act, to exercise certain powers and discretions which would otherwise be exercised by the WorkCover Corporation of South Australia, the body appointed under the Act to administer the workers compensation scheme. Among the powers and discretions which it could exercise were the establishment of rehabilitation programs and rehabilitation and return to work plans for injured employees, the making of determinations concerning entitlement to weekly payments of compensation, discontinuance of weekly payments and review of weekly payments, the assessment of a lump sum by way of compensation for loss of future earning capacity, the assessment of a lump sum for non-economic loss by reference to the table contained in schedule 3 of the Act and determination of a claim for compensation. However, by s 63(3aa) an exempt employer must notify the WorkCover Corporation of its intention to make an assessment for a lump sum in respect of loss of future earning capacity, and must not proceed to make the assessment except with the Corporation’s consent. By s 106A, a payment by an employer to a worker does not constitute an admission of liability or estop a subsequent denial of liability.
As in the case of a decision of the WorkCover Corporation, most decisions of an exempt employer of the type to which I have referred are what the Compensation Act describes in s 89A as “reviewable decisions”. A person with a direct interest in a reviewable decision may lodge a notice of dispute with the Registrar of the Tribunal. This requires the decision to be reconsidered by the compensating authority which may then vary or confirm the decision. If the claimant is still dissatisfied the dispute must be referred for conciliation: s 91A and Part 6A, Division 4. If conciliation fails the conciliator must refer the dispute to the Tribunal for arbitration or for judicial determination: s 92D. For the purpose of making a judicial determination, the Tribunal will usually be constituted of a single presidential member, but the President may direct that a particular dispute should be referred directly to a Full Bench of the Tribunal: s 94A.
Section 95 provides that a party (other than the compensating authority) is entitled, subject to Part 6A of the Act and to limits prescribed by regulation, to an award against the compensating authority for the party’s reasonable costs of resolution of the dispute by the Tribunal. However, s 95(3) provides:
“(3)If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may –
(a) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or
(b) reduce the amount of the award to which the party would otherwise have been entitled.”
Part 6B of the Act confers a special jurisdiction on the Tribunal where a worker believes that there has been undue delay in deciding a claim or other matter affecting the worker. The worker may then apply to the Tribunal for expedited determination of the matter: s 97. Section 97B relevantly provides:
“(1) On an application for expedited determination of a matter, the Tribunal may –
(a)give directions the Tribunal considers necessary to expedite the determination of the matter; or
(b)decide the matter itself.
…
(3) If the Tribunal decides a claim under this section, the decision –
(a)is to be treated as a decision of the relevant compensation authority; and
(b)is a reviewable decision.”
It is not necessary, for present purposes, to refer to the various sections governing the procedures of the Tribunal. They are referred to in some detail in the judgment of Duggan J in the decision of the Full Court to which reference has already been made: Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302. It is merely necessary to note that an appeal lies, but only on a question of law, against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal (s 86), and that the Tribunal constituted of a presidential member or a conciliation and arbitration officer to whom the President has delegated the power may amend or set aside a judgment or order of the Tribunal by consent of the parties, in order to correct an error or “if the interests of justice require that the judgment or order be amended or set aside”: s 88H.
A Full Bench of the Tribunal may state a case on the question of law for the opinion of the Supreme Court (s 86A), but there is no other right of appeal. Section 88I provides:
“No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except –
(a)as provided in this Act; or
(b)in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”
Because they are matters on which the defendant relies by way of defence, it is also necessary to set out the provisions of s 114 and s 119 of the Compensation Act:
“114 - Certain payments not to affect benefits under this Act
Compensation provided to a person under this Act shall not be reduced or otherwise affected by –
(a)an ex gratia payment; or
(b)an accident insurance payment; or
(c)a payment or benefit of a class prescribed by regulation for the purposes of this section.
119 - Contract to avoid Act
(1)Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.
(2)Any purported waiver of a right conferred by or under this Act is void and of no effect.
(3)Any person –
(a) who enters into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act; or
(b) who attempts to induce a person to waive a right or benefit conferred by or under this Act,
is guilty of an offence.”
In the second Supreme Court vexatious litigant proceedings decision, Blue J explained that three types of primary compensation could be payable,[24] being:
·weekly payments during incapacity where compensable disability resulted in incapacity for work;
·compensation for medical, hospital or other treatment where the compensable disability resulted in such expenses;
·where the compensable disability was or became a permanent disability payment, compensation for non-economic loss by way of a lump sum determined as a percentage of a prescribed sum depending on the nature and degree of the disability.
[24] Attorney-General v Kowalski [2014] SASC 1 [143]-[145].
His Honour referred to relevant provisions, summarising them as follows.
Under s 42 of the Act in force up to 24 May 1995, WorkCover or an exempt employer[25] was empowered, but not obliged, upon application to commute a liability to make weekly payments to a liability to pay a lump sum. That lump sum represented the capital value of the liability to make weekly payments. This related to permanent incapacity. The capital payment could not exceed the prescribed sum.
[25] MMAL was at all relevant times an exempt employer.
Under s 42 as in force between 24 May 1995 and 30 June 2008, a liability to pay expenses or to make weekly payments or, from 17 August 1995, a capital payment for loss of further earning capacity, could, by agreement between WorkCover or an exempt employer and the worker, be redeemed by a capital payment to the worker. There were various pre-conditions to the making of an agreement for redemption, including that a medical expert had certified the extent of the incapacity resulting from the compensable disability could be determined with reasonable confidence and the worker had received competent professional and financial advice.
Under s 42A of the Act as in force between 1 July 1993 and 1 July 2008, WorkCover, or an exempt employer, was empowered to assess a worker’s loss of future earning capacity as a capital loss in lieu of future weekly payments. This could only be done if the worker had been incapacitated for work as a result of a compensable disability for more than two years. This power did not require agreement of the worker. An exempt employer could not exercise the power without WorkCover’s consent. From 3 December 1992, an employer was exempted from all liability independent of the Act in respect of compensable disability arising employment.
Justice Blue said that it followed that, after 25 May 1995, s 42 provided for agreements by workers for redemption by a capital sum of weekly payments and/or medical expense entitlements, assuming the pre-conditions to entering into such agreements were met.
2015 grant of permission to institute proceedings
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.
Judge Muecke referred to other decisions in which courts had considered the Heads of Agreement including Mitsubishi Motors Australia Ltd v Kowalski,[30] Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3),[31] and Soden v Kowalski.[32]
[30] [2005] SASC 154 at [273]-[274].
[31] [2009] FCA 53 at [67]-[68].
[32] [2011] FCA 318 at [3]-[8].
Judge Muecke rejected the suggestion the Heads of Agreement was void because the consent of WorkCover had not been obtained. Judge Muecke adopted the views of Deputy President McCouaig in Kowalski v Mitsubishi Motors Australia Ltd[33] and Debelle J in Workers Rehabilitation and Compensation Corporation v JR Engineering Services Pty Ltd,[34] in relation to the operation of s 119 of the Act.
[33] [2001] SAWCT 93 at [111]-[115].
[34] (1995) 180 LSJS 276 at 290.
Judge Muecke considered the provision in the Heads of Agreement that Mr Kowalski be paid an ex gratia payment of about $125,000 did not in its terms attempt to modify, exclude or restrict the operation of the Act. Even if he had come to the conclusion that the paragraph offended s 119, his Honour considered that would make it void only to the extent it did not purport to exclude, modify, or restrict the operation of the Act. The provisions of the Heads of Agreement including the agreement not to institute any legal proceedings in relation to superannuation would not offend s 119 and would be binding.
Full Court 2018 decision on appeal against summary judgment
Mr Kowalski unsuccessfully appealed against the grant of summary judgment in favour of the respondents.[35]
[35] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44.
The Full Court considered the Heads of Agreement in addressing the appeal.
The Court observed that there were three versions of the heads of agreement, firstly, a version of 26 October 1998 initialled in principle, a version described as the 27 October 1998 re-engrossed in principle heads of agreement and finally the executed Heads of Agreement.
One of the issues for the Full Court was whether the respondents could rely on the executed Heads of Agreement if the Fund was not a party to it.
Justice Nicholson observed that Mr Kowalski had repeatedly and erroneously sought to elevate statements made by Blue J to the status of findings of fact and binding determinations of law.
Justice Nicholson referred to a number of findings of fact made by Blue J and continued as follows:[36]
[36] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44 at [36].
It is apparent from the judgment that the Judge paid close attention to the evidence and engaged in a detailed reasoning process in arriving at a number of findings of fact which included the following.[37]
[37] In what follows I have not used the language of the Judge when referring to the three versions of the Heads of Agreement dealt with at the mediation. I have incorporated instead my definitional terms.
(i)A three page document titled “HEADS OF AGREEMENT”, partly in type script and partly in the handwriting of the mediator, was initialled by some of the persons present at the mediation some time on 26 October 1998. I will refer to this document as the “26 October 1998 initialled in principle Heads of Agreement”.
(ii)Whilst the parties initialled this document which the appellant described before the Judge as “the first version of the Heads of Agreement”, the Judge was unable to find “upon what precise basis they did so” but considered it most likely that the persons who initialled the draft did so to indicate their “in principle” agreement to the principal terms of it.
(iii)The appellant understood at material times, both prior to and during the mediation on 26 October 1998, that all issues in dispute between him and MMAL and any part of MMAL, including the Fund, “were to be and were subject of” the mediation.
(iv)The appellant understood at the mediation that one of the persons there, a Mr Breugem,[38] was representing both MMAL and the Fund[39] and the appellant knew, at the time of the mediation, that MMAL was prepared to direct the trustee of the Fund pursuant to the trust deed.
(v)The appellant intended that the 26 October 1998 initialled in principle Heads of Agreement reflected an in principle settlement of all issues between the appellant and MMAL including any superannuation payable by the Fund. The appellant understood, when he read this document on 26 October 1998, that it recorded his agreement to accept the sum of $200,000 in full and final settlement of any entitlements he may have to sick leave, compensation, damages and superannuation including any entitlement with respect to any total and permanent disability. These matters were clearly and unambiguously reflected in the 26 October 1998 initialled in principle Heads of Agreement, the 27 October 1998 re-engrossed in principle Heads of Agreement[40] prepared the next day and the Executed Heads of Agreement.
(vi)It was anticipated by the parties at the mediation on 26 October 1998 that the 26 October 1998 initialled in principle Heads of Agreement would be engrossed for signing or for further consideration and then for final signing the next day, that is, 27 October 1998.
(vii)On 27 October 1998, a re-engrossment of the 26 October 1998 initialled in principle Heads of Agreement was presented at the mediation. This document incorporated not only the previous handwriting of the mediator but some other changes (the 27 October 1998 re-engrossed in principle Heads of Agreement).
(viii)On the morning of 27 October 1998, the appellant and representatives of MMAL discussed the 27 October 1998 re-engrossed in principle Heads of Agreement and agreed to it, subject to a number of changes.
(ix)After the appellant and representatives of MMAL agreed to the changes, the third and final version (that is, the Executed Heads of Agreement) was engrossed and executed by everyone present, including by the appellant and the appellant’s wife. This is the document, the full terms of which have been set out earlier in paragraph [24] of these reasons.
(x)The Executed Heads of Agreement is the document which has been the subject of litigation between the parties during the years subsequent to 27 October 1998 and it is the document the parties agreed to and executed on 27 October 1998, “each understanding what they were agreeing to and agreeing to be bound by”.
(xi)The appellant understood that the $200,000 referred to in the Executed Heads of Agreement included a sum to be paid from the Fund which was in settlement of all claims he had or may have in respect of superannuation. The appellant agreed in consideration of such sum not to institute any legal proceedings in respect of any superannuation which may be payable by the Fund.
(xii)The appellant intended that the Fund be bound by the agreement in which he had entered with MMAL. In this context, the appellant understood that Mr Breugem was at the mediation representing the Fund as well as MMAL.
(Citations omitted)
[38] Mr Breugem was a director of the first respondent between 11 April 1996 and 14 March 2003.
[39] As earlier noted, the first respondent was at all material times a wholly owned subsidiary of MMAL.
[40] See (vii) below.
Justice Nicholson considered the executed Heads of Agreement disclosed a clear joint intention between Mr Kowalski and MMAL that the following was to apply:[41]
(i)The effect of the Executed Heads of Agreement was to finally and fully settle or resolve any entitlements the appellant may have had to “superannuation, sick leave, compensation and damages arising out of or in the course of [the appellant’s] employment with MMAL” (see recitals 1, 2 and 3 and paragraph 1 of the Executed Heads of Agreement).
(ii)The sum of $200,000 to be paid on account of the foregoing was to include payment in full and final settlement of any injuries or disabilities in respect of the injuries expressly identified in paragraph 1.1 of the Executed Heads of Agreement.
(iii)The sum of $200,000 to be paid to the appellant included payment in full and final settlement of any matters related to the termination of his employment with MMAL and any superannuation payable by the Fund (paragraphs 1.3 and 1.4 of the Executed Heads of Agreement).
(iv)Of the sum of $200,000 to be paid to the appellant, the sum of $64,691.43 was to be paid by the Fund by way of an ill health benefit and the sum of $125,308.57 was to be paid by MMAL as an ex gratia payment as compensation for permanent disability (paragraphs 2.1. and 2.2 of the Executed Heads of Agreement).
(v)In consideration of the matters set out in paragraphs 1 and 2 of the Executed Heads of Agreement (and in particular those identified in the immediately preceding subparagraphs of these reasons) the appellant for himself and his dependants agreed not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of those matters (paragraph 4.1 of the Executed Heads of Agreement).
[41] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44 at [68] (Nicholson J).
Justice Nicholson considered that on the evidence before the Judge it was open to make the findings his Honour made and indeed those findings were inevitable. The findings were consistent and with, and plainly evident from, the terms of the executed Heads of Agreement and nothing in the evidence served to contradict any of the findings. It was clearly contemplated by the parties and the expressed common intention was the payment of $200,000 would extinguish Mr Kowalski’s rights, if any, against the Fund.
Justice Nicholson concluded that the Fund was entitled to rely upon and enforce the terms of the executed Heads of Agreement, notwithstanding it was not a party, and the Heads of Agreement released the Fund from future liability. The effect of the executed Heads of Agreement was to terminate any entitlements as against the Fund and Mr Kowalski could not resurrect these entitlements by making further claims.
Justice Nicholson said there was no basis in the evidence to suggest fraud or undue influence or that Mr Kowalski did not have full knowledge of relevant matters including the basis upon which the release and covenant not to sue was given by him.
Justice Nicholson observed that the executed Heads of Agreement had previously been considered judicially, albeit adversely to Mr Kowalski.[42] Against the background referred to in the judgment, Nicholson J observed that Mr Kowalski’s contention for the first time that the executed Heads of Agreement was non est factum (not his deed) had to be treated with considerable reserve.
[42] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93; 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; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53 and Soden v Kowalski [2011] FCA 318.
Justice Nicholson went on describe Mr Kowalski’s complaints based on differences between the text of the initialled in principle heads of agreement of 26 October 1998 and the executed Heads of Agreement. In particular, the former described the $200,000 settlement sum as compensation for permanent disability impairing future earning capacity as opposed to the description in the executed Heads of Agreement of an ex gratia payment as compensation for permanent disability impairing future earning capacity. Mr Kowalski maintained the amendments were made without his knowledge and consent and prior to him signing the executed Heads of Agreement. However, Nicholson J observed that the Judge was satisfied that Mr Kowalski was aware of the differences and had concocted his account of how it came about that the issue of non est factum was raised for the first time at such a late stage. Further, Nicholson J pointed out that Mr Kowalski had never intimated he would reimburse the sum of $200,000. Justice Nicholson continued to say that irrespective of the Judge’s findings, Mr Kowalski had not adduced any evidence that he was, at the time, a person under a disability. There was nothing in the material before the Court that would raise the possibility Mr Kowalski suffered a relevant disability which was sufficient to render fanciful the availability of the defence of non est factum. Further, the document signed was not radically different. The evidence did not support any wider attack on the enforceability of the executed Heads of Agreement. The document was available, Mr Kowalski read it and signed it and became bound by its terms.
Justice Nicholson understood that Mr Kowalski’s case was that he could “live with” the 26 October 1998 initialled in principle heads of agreement subject to it being read down to conform to any relevant statutory requirements and, as such, had made no attack on that document. Justice Nicholson thought that position seemed to have been adopted by Mr Kowalski because it would allow the $200,000 settlement to remain in place yet allow Mr Kowalski to pursue such entitlements as MMAL could not contract out of by reason of ss 42 and 119 of the Act.
Mr Kowalski also asserted that the Heads of Agreement was void and of no effect on the basis of s 119 of the Act. Justice Nicholson referred to Deputy President McCouaig’s decision in Kowalski v Mitsubishi Motors Australia Ltd[43] and the consideration of s 119 by Debelle J in Workers Rehabilitation and Compensation Corporation v JR Engineering Services Pty Ltd & Ors.[44] Justice Nicholson observed that if s 119 was engaged, it would not necessarily render the agreement as a whole invalid. In the present case, the Act was not engaged by Mr Kowalski’s claim which was against the Fund. Whether or not s 119 might operate to restrict reliance by MMAL raised different questions but Nicholson J observed that such an argument had previously failed.
[43] [2001] SAWCT 93.
[44] (1995) 180 LSJS 276 at 290.
Chief Justice Kourakis agreed with the decision of Nicholson J and added some brief reasons.[45] On the issue of s 119 of the Act, the Chief Justice emphasised that cl 5 of the executed Heads of Agreement did not purport to exclude or modify the operation of the Act but contemplated the resolution of proceedings by discontinuance or consent order. The resolution of proceedings in accordance with dispute resolution procedures of the Act did not contravene s 119 of the Act.
[45] [2018] SASCFC 44 [1] (Kourakis CJ).
Justice Hinton agreed with the decisions of Kourakis CJ and Nicholson J.
2018 permission to apply to SAET to set aside Tribunal decisions
On 13 February 2018, Blue J granted Mr Kowalski permission to bring applications in the South Australian Employment Tribunal (“SAET”) pursuant to s 88H of the Act to set aside decisions of the Tribunal. The first of those decisions was the decision of Deputy President McCouaig which rejected Mr Kowalski’s assertions of fraud, misrepresentation and unconscionable conduct in drawing up the Heads of Agreement. The second decision was the decision of the Full Bench of the Tribunal which addressed an appeal by Mr Kowalski against the decision of Deputy President McCouaig. The third was the decision in which Deputy President McCouaig struck out, as an abuse of process, Mr Kowalski’s application to expedite determination of his heart attack claim which he had purported to bring in 2003.
2019 Full Court decision overturning permission
On appeal, the Full Court, comprised of Kourakis CJ, Peek and Parker JJ, allowed the appeal and overturned Blue J’s order giving permission.[46]
[46] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95.
The Full Court set out in its judgment the background to the grant of permission by Blue J. This included the following:[47]
In April 1998, Mr Kowalski claimed compensation from his employer, Mitsubishi Motors Australia Limited (MMAL) for a heart attack suffered in late December 1997. On 27 October 1998, Mr Kowalski, his wife and MMAL executed an agreement, entitled Heads of Agreement (HoA), resolving Mr Kowalski’s heart attack, and other, claims after a mediation conducted by Mr Stephen Walsh QC. At that time, MMAL, which was an exempt employer, had not determined to accept or reject the heart attack claim, prompting Mr Kowalski to bring an application in the SAWCT for an order expediting that determination. In accordance with the terms of the HoA, Mr Kowalski’s expedition application was brought on before a conciliation officer who made a consent determination (the consent determination) rejecting his heart attack claim.
In 1999, Mr Kowalski unsuccessfully brought the first of several proceedings in the SAWCT to set aside the consent determination. The impugned decisions are those which dismissed Mr Kowalski’s applications to have the consent determination set aside. They are:
(a)The decision of McCouaig DP in August 2001 dismissing Mr Kowalski’s application of November 1999 to have the consent determination set aside pursuant to s 88H of the WRCA (the first setting aside decision); [48]
(b)The decision of the Full Bench in August 2002 dismissing an appeal against the first setting aside decision (the Full Bench decision);[49] and
(c)The striking out by McCouaig DP on 7 May 2003, as an abuse of process, a second application by Mr Kowalski to expedite the determination of his heart attack claim which he had purported to make again by correspondence in February 2003.[50]
[47] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95 at [3]-[4].
[48] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93.
[49] Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76.
[50] Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48.
In referring to the mediation of Mr Kowalski’s claims, the Full Court reasons stated as follows:[51]
From 1989 Mr Kowalski prosecuted many claims for compensation against MMAL in multiple proceedings. As at late 1998 there were some 15 actions before various courts, tribunals or review officers for a range of injuries.[52]
On 26 December 1997, Mr Kowalski suffered a myocardial infarction which he attributed to the continuing stress of those proceedings. On 22 April 1998, he lodged a claim for compensation against MMAL alleging the ‘aggravation, acceleration, exacerbation, deterioration of a pre-existing heart disease and depression, heart attack (myocardial infarction)’.[53] On 3 August 1998, Mr Kowalski lodged a claim for ‘disfigurement, travel expenses, rehabilitation service, scarring, medical costs and hospital costs’ said to have resulted from his heart attack and surgery. On 13 October 1998, Mr Kowalski lodged a further claim for compensation to ‘“clarify” his earlier claims’.[54]
MMAL had not determined those claims when the matter was submitted for mediation. The mediation commenced on 26 October 1998 and continued on 27 October 1998. On the second day, MMAL and Mr Kowalski executed the final version of the HoA which we set out below.
[51] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95 at [12]-[14].
[52] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [2].
[53] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [3].
[54] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [5]-[6].
The reasons continued to state that after execution of the final version of the Heads of Agreement, consent orders were entered noting the parties had entered into an agreement resolving all matters in dispute. On that basis, by consent, a determination was made dismissing Mr Kowalski’s claim for aggravation, acceleration, exacerbation, and deterioration of a pre-existing coronary heart disease and depression and heart attack.
The Full Court addressed the Heads of Agreement as follows:[55]
There were several iterations of the HoA. The first iteration was partly in typed script and partly in the handwriting of Mr Walsh QC. It was initialled by persons present at the mediation on 26 October 1998. On 27 October 1998, the first iteration was re-engrossed and presented at the resumed mediation. The re‑engrossed document incorporated the previous handwritten notes and other changes. On the morning of 27 October 1998, Mr Kowalski and MMAL’s representatives discussed the re-engrossed HoA. A number of additional changes were agreed. The third and final version of the HoA was then engrossed and executed by everyone present, including Mr Kowalski and his wife (the executed HoA).
...
The material differences between the executed HoA and the earlier iterations were:
·the words ‘income maintenance and medical expenses’ which had appeared after the word compensation, in clause 1 were deleted in the executed HoA; and
·in the executed HoA the words ‘as an ex gratia payment’ were inserted between the word ‘MMAL’ and the words ‘as compensation’ in clause 2.2 of the earlier iterations.
[55] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95 at [19]-[21].
The Full Court then referred to Mr Kowalski’s unsuccessful attempts in prior proceedings to set aside the consent determinations. I have described those proceedings above. The decisions referred to by the Full Court included the decision of Deputy President McCouaig, which rejected allegations of fraud, misrepresentation and unconscionable conduct in the drawing up and execution of the Heads of Agreement, and the unsuccessful appeal from that decision.
Mr Kowalski’s application for permission to file applications to set aside the consent decisions was based on assertions that he had recently discovered a document relating to the mediation, being a copy of a facsimile from Mr Walsh QC dated 26 October 1998 containing the 26 October iteration of the heads of agreement. Mr Kowalski asserted the Heads of Agreement was executed non est factum because he was not made aware of the changes between the 26 October iteration and the executed Heads of Agreement and MMAL’s legal representation did not draw attention to the changes made. Mr Kowalski contended that if the 26 October iteration had been before the Deputy President and the Full Bench, they would have reached different conclusions on the application of s 119 of the Act.
The Full Court then said:[56]
It is appropriate to immediately note a fundamental paradox inherent in that contention. Mr Kowalski’s contention is that, because he was not told by MMAL’s solicitors or the mediator that the text of the executed HoA saved it from invalidity and therefore precluded him from taking the $200,000.00 and pursuing claims for additional awards, it was non est factum. The practical effect of Mr Kowalski’s submission is that he would not have resolved his dispute with MMAL pursuant to the executed HoA if he had known that the changes in the text precluded him from later contending that the very agreement he was purporting to make was void by reason of inconsistency with s 119 of the WRCA. We do not suggest that Mr Kowalski did in fact intend to take the settlement only to then breach the agreement and pursue his claims for compensation. Indeed, even though his intentions are irrelevant for present purposes, it is much more likely that he only later came to regret his decision to settle. The point we are making is that to allow the plea of non est factum to vitiate Mr Kowalski’s agreement retrospectively imputes to him that very stratagem. It is difficult to conceive of a less meritorious deployment of the doctrine.
[56] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95 at [28].
The Full Court explained that Mr Kowalski instituted the proceedings following Blue J’s permission on the grounds that MMAL and its legal representatives altered the Heads of Agreement between 26 and 27 October 1998 such that the executed Heads of Agreement was non est factum and the earlier iteration and/or the executed Heads of Agreement contravened s 119 of the Act.
The Full Court concluded it was not arguable that it was inconsistent with s 119 of the Act to agree to compromise a claim under the Act by consent. Section 119 prohibits agreements which abrogate, modify, or waive the rights the Act confers or prohibits proceedings to enforce those rights. If Mr Kowalski, after executing the Heads of Agreement, had not consented to the dismissal of his expedited claim, the executed Heads of Agreement may not have precluded him from prosecuting it even if he was in breach by doing so. However, the Full Court stated that Mr Kowalski did consent to the dismissal of his heart attack claim and the consent determination was made pursuant to the Act. Any application to set aside the consent determination had to take into account the circumstance that Mr Kowalski consented to it pursuant to an agreement for which he received substantial consideration. The Full Court also concluded it was not arguable that the executed Heads of Agreement was non est factum and concluded the proceedings were, by their very nature and purpose, designed to re-litigate the issue previously decided adversely to Mr Kowalski.
In reaching its conclusions, the Full Court referred to findings made by Judge Muecke in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd which were referred to the Full Court in the appeal against that decision.[57]
[57] [2018] SASCFC 44 at [36].
The Full Court said the proposed proceedings were doomed to fail because Mr Kowalski did not put forward any material on his application for s 39 permission which would satisfy the elements of a non est factum plea, namely an operative disability and a substantial, if not radical, difference in the nature and character of the document. Justice Blue did not identify any other legal foundation for any obligation to explain or warn Mr Kowalski about the possible legal consequence the changes in text might make, making it more difficult for him to set aside the very agreement which he had made voluntarily as being contrary to s 119. There was no finding of any misrepresentation and it was not reasonably arguable that there was any other circumstance which vitiated the Heads of Agreement. Any differences in text were immaterial. The changes in text were purely matters of form that could not affect the question whether as a matter of substance the executed Heads of Agreement was inconsistent with s 119. Despite using the words “ex gratia”, the sum of $125,308.57 was plainly payable pursuant to a contractual obligation. It was equally plain it was being paid in exchange for the dismissal of Mr Kowalski’s workers compensation proceedings. The relevant question was whether the agreement was valid insofar as it bound Mr Kowalski to consent to the dismissal of his existing claims. The Full Court concluded it was and the plea of non est factum was bound to fail. Further, the adverse decision in the Fund proceedings demonstrated the futility in Mr Kowalski’s arguments that the executed Heads of Agreement was non est factum.
The Full Court then turned to consider s 119 of the Act. The Full Court concluded that paragraph 4.3 of the executed Heads of Agreement was not inconsistent with s 119 of the Act. It was a compromise of the dispute between MMAL and Mr Kowalski over the statutory rights created by the Act. It was premised on the existence of those rights and did not exclude or modify the operation of the Act. The Full Court considered the Act contemplated the determination of disputes by orders of the kind made in the consent determination whether or not a collateral payment was less or more than may have been awarded if the compromise was not reached. The Full Court distinguished agreements which resolved disputed claims of existing injuries and consequential statutory entitlements from agreements which precluded a worker from bringing claims for future injuries and impairments should they eventuate.
The Full Court continued as follows:[58]
In the reasons for making orders against Mr Kowalski,[59] Blue J expressed the distinction differently. Blue J accepted that an agreement as to past entitlements under the WRCA may be consistent with s 119 of the WRCA, but held that an agreement to preclude any future entitlement on an existing or new claim would not be. On that reasoning the executed HoA was valid, and the consent determination properly made, as to any past income maintenance entitlement but not as to future payments or redemption or other lump sums. The delineation drawn by Blue J breaks down in cases in which there is a dispute as to whether there is any compensable injury at all. The consent determination in this case dismissed Mr Kowalski’s claim that his heart attack arose out of, or in the course of his employment. It is a necessary implication of the consent dismissal that Mr Kowalski had no compensable claim at all for his heart attack. There is no reason why MMAL and Mr Kowalski should be precluded from so agreeing. On that agreement there could be no claim for future payments.
[58] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95 at [70].
[59] Attorney-General v Kowalski [2014] SASC 1 at [1062]-[1089].
It was thus not reasonably arguable the compromise contravened s 119.
The Full Court said the very purpose of the s 39 permission was to set aside decisions made adversely to Mr Kowalski so the underlying controversy could be re-litigated. Their Honours observed that judicial orders are final and binding save for an appeal allowed by statute or review for illegality and the Court’s limited powers to set aside decisions are exceptional, to guard against fraud. The Full Court pointed out that the principle of finality remains an important consideration.
The Full Court concluded that the permission application was not based on factual events or changes in the law discovered or made after the decisions were handed down but based on contentions of fact and law which ought to have been raised in the hearings that Mr Kowalski was seeking to have set aside. The very mischief a vexatious litigant declaration is calculated to address is the re-agitation of matters using arguments not made in earlier proceedings. The Full Court said the ultimate purpose of the application was to re-litigate the non est factum issue and whether the consent determination should be set aside so that Mr Kowalski could prosecute his heart attack claim, a right which he had compromised for a substantial sum by signing the Heads of Agreement.
Justice Blue considered there was no prospect the Full Court would entertain re-argument on Mr Kowalski’s contention that the Full Court erred in stating the executed Heads of Agreement was not materially different to earlier versions. While Mr Kowalski contended the finding was fraudulent, he did not establish any basis for the contention.
Justice Blue said there was no prospect the Full Court would entertain re-argument in respect of the construction of the Heads of Agreement, rejecting Mr Kowalski’s contention the Full Court erred in stating that despite the use of the words “ex gratia”, the sum of $125,308.57 was plainly payable pursuant to a contractual obligation.
Justice Blue said there was no prospect the Full Court would entertain re-argument on Mr Kowalski’s contention the payment of the ex gratia was irrelevant as a result of s 114 of the Act.
Justice Blue rejected Mr Kowalski’s contention the Full Court failed to follow the parol evidence rule. The Full Court construed the Heads of Agreement without reference to evidence about discussions between the parties.
Mr Kowalski also referred to correspondence in the first half of the 1990s with WorkCover or Ministers of the Crown in which WorkCover reviewed and refused its consent to a compromise reached in 1992. Mr Kowalski contended this demonstrated WorkCover’s consent to the Heads of Agreement was required in 1998. Justice Blue noted that Mr Kowalski did not advance the contention on the original application and therefore, regardless of merit, he could not rely on it in an application to correct the decision. Thus, if it had merit, Mr Kowalski would need to make a fresh application. However, in any event, Blue J said the Full Court addressed and answered a question of law as to the applicability of s 119 to the Heads of Agreement and that question was incapable of being affected by the earlier correspondence with WorkCover and/or ministers. Justice Blue then continued as follows in paragraphs 44 and 45 of the ruling:
Mr Kowalski refers to my ruling dated 19 dated 26 May 2021 in which I concluded that there was no redemption under sections 42 or 42A of Mitsubishi’s liabilities to it. He contends that he is therefore entitled to apply for a redemption.
Leaving aside the Full Court’s holding about the validity and effect of the Heads of Agreement in precluding claims, if Mr Kowalski wishes to institute a proceeding seeking redemption, he would need to make an interlocutory application under section 39 of the Supreme Court Act for permission to do so. This matter cannot be raised on an application to correct my ruling 27.
As set out above, Mr Kowalski’s present application is based on these paragraphs.
Test for a grant of permission
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”.
During the hearing, Mr Kowalski identified a large number of FDNs which he requested I consider in addressing the application.[74] Many of those FDNs were described as submissions but in fact consisted of bundles of various emails sent to Chambers and other recipients together with extracts of a considerable number of different kinds of documents, from different sources, some of unclear provenance, marked up with Mr Kowalski’s handwritten notations and/or underlining.
[74] FDNs 516, 517, 518, 952, 953, 954, 955, 956, 957, 958, 959, 961, 962, 963, 964 and 965 and Blue J’s ruling 37.
I have considered the documents to which Mr Kowalski referred.
Tenable argument
I do not set out separately below each and every one of the matters referred to in the “submissions”. Compendiously, they are arguments which have been raised and rejected in prior decisions and rulings.
During oral submissions, Mr Kowalski made a number of contentions which I set out below to demonstrate the re-agitation, without basis, of assertions previously made and rejected as lacking any tenable basis.
·There was a redemption by MMAL, but MMAL did not comply with its statutory obligations.
As set out above, Blue J rejected a contention to this effect in a number of his rulings. It has no prospect of success. There is no basis for Mr Kowalski to raise the argument again.
·The Full Bench of the Tribunal stated MMAL paid Mr Kowalski an ex gratia payment of $125,000, but in the Heads of Agreement it had said compensation under s 42 because the payment was for the loss of future earning capacity for the injuries.
Mr Kowalski’s various contentions about the reference to “ex gratia” in the Heads of Agreement were addressed and dismissed by the Full Court and Blue J dismissed earlier applications on the basis that Mr Kowalski’s arguments in relation to the “ex gratia” payment were and continue to be untenable. The argument has no prospect of success. There is no basis for Mr Kowalski to raise the assertion again.
·On 26 October 1998, the Heads of Agreement was initialled by Mr Walsh KC, Mr Breugem and Mr Kowalski and then, on 27 October 1998, without Mr Kowalski’s consent or knowledge, MMAL illegally altered paragraph 2.2 of the heads of agreement and included the words “ex gratia payment”.
As set out above, this contention has previously been rejected. It has no prospect of success. There is no basis for Mr Kowalski to raise this assertion again.
·The version of the heads of agreement settled on 26 October 1998 said the sum was to be paid by MMAL as compensation for permanent disability impairing future earning capacity arising from the injuries and disabilities referred to.
As set out above, the contention about the various iterations of the heads of agreement has previously been rejected. It has no prospect of success. There is no basis for Mr Kowalski to raise the assertion again.
·Mr Kowalski’s wife was only a bystander, not a party to the mediation.
Mr Kowalski’s wife signed the Heads of Agreement. There is no basis for the assertion. It makes no difference to any of the arguments Mr Kowalski seeks to raise again which have no prospects of success.
·On 27 October 1998, MMAL forced Mr Kowalski’s wife to become a party to the Heads of Agreement and deceived him into signing the Heads of Agreement without fully explaining that MMAL had removed reference to the fact he was accepting compensation and renamed it to an ex gratia payment. Accordingly, that was an illegal attempt to avoid MMAL’s statutory and legal obligations under the Act. The Heads of Agreement were therefore void.
As set out above, the contention that MMAL engaged in fraud or other inappropriate conduct in relation to the execution of the Heads of Agreement, including the change in wording of the executed Heads of Agreement and the assertion the Heads of Agreement was void, has previously been rejected. There is no basis for Mr Kowalski to raise these assertions again. Adding a reference to Mr Kowalski’s wife makes no difference to that position. The argument has no prospect of success.
·The decision of the Full Bench of the Tribunal in Kowalski v Mitsubishi Motors Australia Ltd[75] therefore had to be corrected and the orders set aside.
Mr Kowalski’s contentions leading to the assertion the decision must be set aside have previously been rejected. The arguments have no prospect of success. There remains no basis for Mr Kowalski to seek the setting aside of the decision.
·Under s 114 of the Act, MMAL had no legal right to pay Mr Kowalski an ex gratia payment. If it did, it did not affect any compensation he was entitled to receive.
As set out above, this contention has previously been rejected. It has no prospect of success. There is no basis for Mr Kowalski to raise the assertion again.
·Mr Kowalski attached to his documents a WorkCover claim detail report which recorded alongside a reference to Mr Kowalski’s heart attack claim the notation “rejected”. Mr Kowalski marked up the document with a handwritten statement “Note: Blue J falsely alleged that MMAL did not reject [his] heart attack claim on 11 May 1998”.
The assertion that there was evidence that MMAL in fact rejected Mr Kowalski’s heart attack claim was conclusively addressed and rejected by Blue J as set out above. Without reiterating all of the reasoning, in essence, Blue J concluded there was no evidence that MMAL had in fact rejected the claim in May 1998 but further, and in any event, MMAL thereafter through its conduct continued to address the heart attack claim in a way which was inconsistent with MMAL having rejected that claim in May 1998.
There is no tenable basis for Mr Kowalski’s contention and makes no difference to any of the arguments Mr Kowalski seeks to raise again which have no prospects of success. There is no basis for Mr Kowalski to raise the assertion again.
[75] [2002] SAWCT 76.
In the first Supreme Court vexatious litigant proceedings, as set out above, Bleby J made the following observations:
The defendant subsequently and in these proceedings sought to use that finding to demonstrate that there was an unfulfilled liability on the part of the plaintiff to redeem the plaintiff’s liability to make weekly payments of compensation to the defendant.
The defendant’s argument is misconceived. It does not follow from the fact that there has been no redemption under s 42 that there remains a liability on the part of the plaintiff to redeem. The heads of agreement recorded the plaintiff’s denial of any liability to the defendant for weekly payments and agreed, for consideration expressed in the agreement, that the defendant’s claim for weekly payments should be dismissed, as it was. The defendant’s subsequent claims for redemption have been dismissed … the dismissal was entirely justified.
Justice Blue has addressed a range of arguments which have been made previously by Mr Kowalski with the aim of obtaining permission for him to bring proceedings seeking redemption. For the clear, comprehensive and compelling reasons set out in the prior decisions to which I have referred above, including Blue J’s rulings 16, 19, 23, 24, 26, 27 and 29, there is no tenable basis for the proceedings Mr Kowalski seeks to institute in the SAET for redemptions pursuant to ss 42 or 42A and any such proceedings would have no prospects of success. Without comprehensively reiterating the prior conclusions, the key points are that:
·Neither ss 42 nor 42A of the Act, as in force in 1998, provided a right to redemption.
·MMAL did not make any assessment under the provisions of the Act neither before, nor at the time of, the Heads of Agreement being executed.
·The Heads of Agreement did not constitute a redemption.
·The absence of a redemption did not leave room for a liability to redeem.
·Mr Kowalski had not established that MMAL in fact rejected the heart attack claim either in May or later in 1998. In any event, MMAL’s conduct after May 1998 was consistent only with it continuing to address the heart attack claim.
·The Heads of Agreement did not constitute a rejection of the heart attack claim.
·MMAL did not engage in the alleged improper conduct.
·The heart attack claim proceedings were dismissed in November 1998 by consent.
·Conciliation Officer Richer had jurisdiction.
·The Heads of Agreement was not invalid.
·The Heads of Agreement preclude Mr Kowalski from prosecuting any proceedings arising out of the heart attack claim (as well as the other matters addressed in the Heads of Agreement).
Accordingly, any proceedings to seek redemption would not have any prospect of success.
Mr Kowalski fundamentally misstates [45] and [46] of Blue J’s ruling 37. It is manifestly not the case that statements made by Blue J in [45] and [46] are findings of fact. In the Full Court, Nicholson J observed that Mr Kowalski has frequently taken statements made and sought to elevate them to findings of fact. Mr Kowalski has done so again. In the paragraphs in question, Blue J was doing no more than observing that it is not possible for a judicial officer to reconsider a ruling based on a matter which was not the subject of that ruling. Plainly, that is because there would be nothing to correct. In such a case, the only avenue available to an applicant as a matter of procedure would be to bring a new application for permission. Justice Blue was not finding as a fact that there was a basis to bring a permission application nor making any comment about the potential success of any such application.
Further, Mr Kowalski’s application conveniently ignores the critical introduction to paragraph 46, being the phrase “[l]eaving aside the Full Court’s holding about the validity and effect of the Heads of Agreement in precluding claims”. By this phrase, Blue J was acknowledging that the Full Court’s decision concerning the Heads of Agreement would preclude any such claim. His Honour was doing no more than pointing out, procedurally, why he could not address the argument on an application to reconsider his prior ruling.
For the reasons I have set out above, there is no tenable basis for the proceedings Mr Kowalski seeks permission to bring, nor for any of the arguments he uses to justify the proposed proceedings. That conclusion itself is sufficient to refuse the application for permission.
Re-agitation of matters already decided
Further, it is abundantly clear from the history of the proceedings and rulings, which I have set out above, that Mr Kowalski’s current application seeks to re-agitate issues which have been conclusively determined against him on repeated occasions. This too, of itself, warrants refusal of the permission application.
Review of the decisions and rulings, to which I have referred above, clearly demonstrates that Mr Kowalski has consistently and persistently sought to revisit prior decisions. He has done so by a number of means, including by seeking to re-frame the same or similar issues, periodically adding references to authorities or assertions of purported new facts said to support his position and requesting the Court to revisit prior decisions.
It is now more than 26 years since the entry by Mr Kowalski into the Heads of Agreement. The Heads of Agreement have been determined to be binding on Mr Kowalski in multiple decisions which have addressed the contentions Mr Kowalski has raised over time as each of his arguments have been rejected. Mr Kowalski has exhausted all avenues to attack the Heads of Agreement and to resuscitate past claims or bring new ones. Justice Bleby observed that Mr Kowalski was unwilling to accept that his arguments have been found, on numerous occasions, to be misguided and wrong. Regardless, he pursued them relentlessly and the manner in which he conducted his case suggested he had every intention of continuing to institute such proceedings until someone accepted the validity of what were hopeless claims. Twenty years later, I repeat those observations. Through the last two decades, Mr Kowalski has failed to accept that he has exhausted all opportunities to call into question the Heads of Agreement, to raise new arguments to allow him to set aside prior decisions, and to commence proceedings to re-litigate compensation for the injuries which are the subject of the Heads of Agreement.
Even if there were any merit in any of the arguments, which I emphasise there is not, there would be no reason in the interests of justice to allow Mr Kowalski to commence further proceedings in the circumstances I have chronicled above. The doctrine of finality precludes it. Finality demands the refusal of permission.
There are good grounds on which to infer that MMAL and others have incurred significant costs and deployed significant resources in addressing unmeritorious actions and applications since 1998. Since being declared a vexatious litigant, Mr Kowalski’s repeated, unmeritorious applications have resulted in an unreasonable and disproportionate expenditure of publicly funded resources of the Court, including the time spent by judicial officers and other staff of the Courts Administration Authority, to the detriment of other litigants whose matters await determination. The Court must, of course, always take great care to ensure that a litigant declared vexatious is not precluded from seeking permission to agitate proper, meritorious claims. However, it is inconsistent with the purpose of a vexatious litigant declaration for permission applications to be used as a vehicle to require the Court to address over and over the same or differently articulated but fundamentally the same or similar arguments.
Delay
As set out above, the Full Court referred to delay being a weighty reason to refuse permission. The same reason applies now with even greater force. The application for permission is now made approximately two and a half decades after the entry into the Heads of Agreement and the consent determination and two decades after Bleby J’s judgment.
The application is therefore dismissed.
Abuse of process
Taking into account the history of Mr Kowalski’s litigation over the time since the entry into the Heads of Agreement in 1998 and all of the matters to which I have referred above, interlocutory application FDN 950 constituted an abuse of process which would have warranted striking it out without the need for the Court to address it.
FDN 366
Mr Kowalski maintained that Blue J never dealt with FDN 366, an interlocutory application dated 8 January 2016 in which Mr Kowalski sought permission to file an application in the Tribunal pursuant to s 88H of the Act to set aside the judgment of the Full Bench dated 19 August 2002 in Kowalski v Mitsubishi Motors Australia Ltd[76] dismissing an appeal by Mr Kowalski against a judgment of Deputy President McCouaig.
[76] [2002] SAWCT 76.
Mr Kowalski asked for that application to be addressed.
I have located ruling 3 dated Thursday 20 April 2017, settled on 24 April 2017, in which Blue J addressed Mr Kowalski’s interlocutory application FDN 366. In the ruling, Blue J referred to an affidavit in support of the application for permission in which Mr Kowalski deposed to recently discovering a copy of a facsimile from the mediator dated 26 October 1998 containing the 26 October version of the Heads of Agreement. Mr Kowalski relied upon the reference to the words “ex gratia” and the deletion of the reference to income maintenance and medical expenses in clause 1 of the 27 October version of the Heads of Agreement. Mr Kowalski contended the Heads of Agreement were executed non est factum and that if the 26 October version had been before Deputy President McCouaig and the Full Bench, they might have reached a different conclusion whether the Heads of Agreement was in breach of s 119 of the Act.
In ruling 3, in 2017 Blue J was prepared in principle to give Mr Kowalski permission to apply to set aside the decision of Deputy President McCouaig, the Full Bench and the decision of Deputy President McCouaig which struck out Mr Kowalski’s application to expedite determination of his heart attack claim in 2003. Mr Kowalski was directed that he would need to prepare a draft application and supporting affidavit addressing particular matters. Justice Blue adjourned the hearing of the application to enable Mr Kowalski to attend to those matters.
Mr Kowalski submitted that Blue J never finally determined FDN 366 because, on 20 April 2017, Blue J made an order that further consideration of the FDN was adjourned to 1 May 2017 at 10:30 am and then, on 1 May 2017, the hearing was cancelled. I have not been able to ascertain whether Mr Kowalski in fact produced to the Court a draft application and affidavit in accordance with Blue J’s reasons. However, from the orders on the file, it appears likely that Mr Kowalski never filed the material which Blue J required to hear and determine the application.
Whether or not Mr Kowalski did so, and in any event, the permission application has been overtaken by subsequent decisions. The Full Court decision in 2019[77] conclusively establishes why a permission application, in the terms which Blue J had contemplated in 2017, would now lack any utility at all.
[77] Mitsubishi Motors Australia Ltd v Kowalski [2019] SASCFC 95.
From my review of the file, it appears that Blue J only gave an in principle indication, but never formally granted permission and accordingly nothing further is required to address the issue. However, out of an abundance of caution and to the extent necessary to ensure the question is clearly resolved, I revoke any permission which may have been given on the basis that subsequent events have rendered any such permission entirely futile.
Further, to the extent necessary to finalise that application, I dismiss the application commenced by FDN 366.
Conclusions and orders
I dismiss application FDN 950 for permission to institute proceedings in the SAET.
To the extent necessary, I revoke the in principle permission granted by Blue J in ruling 3 addressing FDN 366 and I dismiss FDN 366.
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