Attorney-General (SA) v Kowalski (No 7)

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SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ATTORNEY-GENERAL (SA) v KOWALSKI (NO 7)

[2018] SASC 62

Judgment of The Honourable Justice Blue

14 May 2018

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS

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

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES

Application for permission to appeal against permission pursuant to section 39 of Supreme Court Act 1935 to institute proceedings.

On 26 October 1998 Mitsubishi Motors Australia Limited and Mr Kowalski attended a mediation and initialled a Heads of Agreement providing for payment of approximately $125,000 as compensation for permanent disability impairing future earning capacity arising from claimed work injuries and $10,000 in consideration of Mr Kowalski foregoing any claims or future claims arising from his employment.  Mr Kowalski agreed to discontinue all subsisting proceedings and not to initiate any new proceedings in respect of amongst other things workers compensation.

On 27 October 1998 the parties executed a further version of the Heads of Agreement.  This version differed in some respects from the version initialled at the mediation, including that payment of the sum of about $125,000 was now described as an ex gratia payment and references to the settlement of claims for income maintenance and medical expenses by way of compensation were omitted. 

Shortly thereafter determinations were made by consent dismissing certain compensation claims by Mr Kowalski.

Mr Kowalski subsequently applied to set aside the consent determinations on various grounds including that those parts of the Heads of Agreement that purported to bar his claims to compensation were rendered void by section 119 of the Workers Rehabilitation and Compensation Act 1986. In 2001 Deputy President McCouaig dismissed the application, holding that the Tribunal had no jurisdiction to make the order sought. Deputy President McCouaig expressed the opinion obiter that the Heads of Agreement did not breach section 119.

An appeal to the Full Bench was dismissed on the ground that the Full Bench had no jurisdiction because no question of law was involved. Deputy President Judge McCusker expressed the opinion obiter that the Heads of Agreement did not breach section 119.

Mr Kowalski subsequently in 2003 made a claim for weekly payments.  He filed an application for an expedited decision when Mitsubishi did not respond.  Deputy President McCouaig held that he was seeking impermissibly to relitigate the validity of the Heads of Agreement which had been conclusively determined against him.

In January 2014 an order was made pursuant to section 39 of the Supreme Court Act prohibiting Mr Kowalski from instituting proceedings without prior permission of the Court.

Mr Kowalski subsequently sought permission under section 39 to apply to the Employment Tribunal…

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Details
Case
[2018] SASC 62
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Kowalski (No 7) involves a dispute between Mr Kowalski and Mitsubishi, concerning a workers' compensation claim. The case was heard in the Supreme Court of South Australia. Mr Kowalski had originally lodged a workers' compensation claim with Mitsubishi in 1998, which was settled through a Heads of Agreement. However, the dispute arose when Mitsubishi applied for permission to appeal against the granting of permission to Mr Kowalski, arguing that the permission should not have been granted and that there is no right of appeal against such decisions.

The central legal issues in the case were whether there is a right of appeal against the granting of permission to a party in litigation, and if so, under what circumstances such an appeal can be sought. The court was required to consider the principles of abuse of process and whether Mr Kowalski's actions amounted to an abuse of the legal process. The court also had to determine whether there was a manifest unfairness to Mitsubishi in allowing the re-litigation of the issues decided in the earlier proceedings, and if permitting such re-litigation would bring the administration of justice into disrepute.

The court's reasoning was grounded in the principles established in previous authorities regarding abuse of process. The court found that while re-litigation of issues in a subsequent matter is generally permissible, there are circumstances where it may amount to an abuse of process. These circumstances include when the subsequent proceedings are intended to mount a collateral attack on the decision in the earlier proceedings, when it would be manifestly unfair to the opponent in the later proceedings to re-litigate the issues, or when permitting re-litigation would bring the administration of justice into disrepute. However, the court also noted that the mere fact that a party seeks to re-litigate an issue decided against them in earlier litigation is not sufficient to constitute an abuse of process.

In this case, the court found that Mr Kowalski's actions did not amount to an abuse of process. The court held that there was no manifest unfairness to Mitsubishi in allowing the re-litigation of the issues, and that permitting such re-litigation did not bring the administration of justice into disrepute. Therefore, the application by Mitsubishi to appeal against the granting of permission was dismissed.

The final orders of the court were that Mitsubishi's application for permission to appeal against the granting of permission was dismissed, with costs.

Orders

Orders of the court

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Background

Background to the litigation

In February 2018 Mitsubishi applied for permission to appeal against the giving of permission. At the hearing of the application, Mitsubishi invited me to revoke the permission if I am satisfied that it ought not to have been granted. Mr Kowalski opposed Mitsubishi’s application, contending that there is no right of appeal against the giving of permission, Mitsubishi has no standing to seek to appeal against the permission and on the merits permission to appeal should be refused.Background In April 1998 Mr Kowalski lodged with Mitsubishi a claim for workers compensation for heart attack, aggravation of pre-existing heart disease and depression. He claimed that they were caused by stress caused by legal actions between Mr Kowalski and Mitsubishi and he was entitled to workers compensation because they occurred while he was attending to seek compensation in connection with compensable disabilities. In July 1998 Mr Kowalski filed in the Tribunal an application for expedited decision in respect of his heart injury/depression claim (action 4163 of 1998). This application was assigned to Conciliation Officer Richer. On 26 October 1998 Mr Walsh QC presided over a mediation between Mitsubishi and Mr Kowalski (the Mediation). On 26 October 1998 Mitsubishi and Mr Kowalski initialled a document entitled Heads of Agreement (the 26 October version). The document contained various handwritten changes from a typed version prepared by Mitsubishi’s lawyers. It provided for Mitsubishi to pay $200,000 to Mr Kowalski on behalf of himself and his dependants. Clause 1 provided that the payment was:in full and final settlement of any entitlements he might have to superannuation, sick leave, compensation (income maintenance and medical expenses) and damages arising out of or in the course of his employment with MMAL. Clause 2 provided that the sum of $200,000 comprised three components: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 7.3.70 to date of cessation of employment.2.2 The sum of $125,308.57 to be paid by MMAL 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 Mr Kowalski forgoing any claims or future claims in any way arising from his employment. On 27 October 1998, Mitsubishi and Mr and Mrs Kowalski executed a further version of the Heads of Agreement (the 27 October version). There were two changes from the 26 October version (as amended in handwriting) that are material for present purposes:1.In clause 1 the words “(income maintenance and medical expenses)” were omitted (the workers compensation omission) and clause 1 now provided that the payment was:in full and final settlement of any entitlements he might have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. 2.In clause 2.2 the words “as an ex gratia payment” were inserted (the ex gratia addition) so that clause 2.2 now comprised: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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Morgan v WorkCover Corporation,[51] the Full Court examined several previous authorities on this species of abuse of process and said:[52][51] [2013] SASCFC 139, (2013) 118 SASR 297. [52] At [129], [145] per Blue J (Kourakis CJ and Sulan J agreeing) (Citations in original).There have been several cases in which it has been held to be an abuse of process for a party in a subsequent matter to seek to re-litigate a case finally determined against that party in an earlier matter notwithstanding that the opposing party is different in the two matters. In those cases, the alleged abuse related to an attempt to re-litigate the case as opposed to a single issue. The opponent in the later matter brought an interlocutory application seeking a permanent stay, strike out or dismissal of the matter where the litigant was the plaintiff or strike out of the defence where the litigant was the defendant.…The following can be drawn from the authorities.1. In the cases in which it was concluded that there was an abuse of process:(a) in Spalla v St George Motor Finance Ltd (No 6),[53] the Spalla group were plaintiffs in both actions and sued the same defendants making essentially the same complaints such that, as a matter of substance but not form, res judicata and issue estoppel principles would have applied;[53] [2004] FCA 1699.(b) in Rippon v Chilcotin Pty Ltd,[54] the Chilcotin group were plaintiffs in both actions and sued different defendants making essentially the same complaints such that, as a matter of substance but not form, Anshun estoppel principles[55] would have applied;[54] (2001) 53 NSWLR 198.[55] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.(c) in Reichel v Magrath,[56] Reichel was plaintiff in the first action and defendant in the second and, as a matter of substance but not form, the second opponent was successor in title to the first opponent and the subject matter of the action transcended in personam rights;[56] (1889) 14 App Cas 665.(d) in Hunter v Chief Constable of the West Midlands Police & Ors,[57] Hunter was defendant in the first proceedings and plaintiff in the second and his purpose in bringing the second action was to mount a collateral attack upon the decision in the first proceedings;[57] [1982] AC 529.(e) in each case, the opponent in the second action made an interlocutory application to stay, strike out or dismiss the claim or defence of the party found to be acting in abuse of process;(f) in each case, the abuse involved the re-litigation in the second action of the decision in the original proceedings and not merely of one of several issues.2.Where res judicata and issue estoppel do not apply because of the form of the respective proceedings, an action may nonetheless be an abuse of process because the principles which give rise to them apply as a matter of substance.[58] 3.Where the purpose of the second proceedings is to mount a collateral attack on the decision in the first proceedings, there will be a basis for finding abuse of process.[59]4.Where it was unreasonable for the plaintiff not to join both claims in the first action, there will be a basis for finding abuse of process.[60]5.The mere fact that the person against whom the abuse is alleged was a party in both proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. Something more is required.[61] 6.Normally, in order to establish abuse of process by re-litigation, it is necessary to establish that:(a) the purpose of the subsequent proceedings is to mount a collateral attack on the decision in the earlier proceedings;(b) it would manifestly unfair to the opponent in the later proceedings that the issues decided in the earlier proceedings be re-litigated; or(c) permitting re-litigation would bring the administration of justice into disrepute.[62]7.The mere fact that the party against whom the abuse is alleged seeks to re-litigate an issue decided against that party in earlier litigation is not sufficient to bring the administration of justice into dispute.[63][58] Reichel v Magrath (1889) 14 App Cas 665; Connelly v DPP [1964] AC 1254.[59] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.[60] Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699.[61] South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1; State Bank of New South Wales Ltd v Stenhouse (1991) Aust Torts Reports 81-423; Walpole v Partidge and Wilson [1994] QB 106; Arthur J S Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.[62] Arthur JS Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1.[63] Arthur J S Hall & Co v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.The decision in the superannuation action

Ratio Decidendi

Legal Principle Established

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