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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- Case
- [2018] SASC 62
- Decision Date
CaseChat Overview and Summary
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.
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