Attorney-General (SA) v Kowalski (No 7) - [2018] SASC 62

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 to set aside the judgments of Deputy President McCouaig and the Full Bench. In February 2018 permission was granted to Mr Kowalski to file the application.
In February 2018 Mitsubishi applied for permission to appeal against the section 39 permission to file the application. Mitsubishi invited the Court in the alternative to revoke the permission granted. The principal ground of appeal articulated by Mitsubishi is that Judge Muecke in an action between Mr Kowalski and AMP Superannuation Ltd decided that Mr Kowalski executed the 27 October 1998 version of the Heads of Agreement knowing the changes from the 26 October version and the Heads of Agreement did not contravene section 119 of the Workers Rehabilitation Compensation Act 1986 and it would be an abuse of process for Mr Kowalski to seek to relitigate the same issues as against Mitsubishi.
Mitsubishi also articulates secondary grounds of appeal that, if Mr Kowalski is precluded by abuse of process principles from contending that he executed the 27 October version without knowing of the changes from the 26 October version, there is no basis on which he could revisit before the Tribunal the issue of compliance of the Heads of Agreement with section 119; and that setting aside the orders made by the Tribunal would not affect the consent determination and Mr Kowalski should rather seek to set aside the consent determination itself.
Mr Kowalski contends that no appeal lies against section 39 permission to institute a proceeding and alternatively Mitsubishi does not have standing to appeal.
Held:
1. Discussion whether an appeal lies against permission under section 39 of the Supreme Court Act to institute a proceeding. Unnecessary to decide this question (at [48]-[58]).
2. Discussion whether a non-party has standing to appeal against permission. Unnecessary to decide this question (at [59]-[62]).
3. Abuse of process by litigation principles considered (at [69]-[71]).
4. It is not reasonably arguable that Mitsubishi can establish on appeal to the requisite standard on an application for section 39 permission that it is an abuse of process by relitigation for Mr Kowalski to advance the contention that he executed the 27 October version without knowing of the two material changes given the findings by Judge Muecke in the superannuation action (at [105]).
5. It is not reasonably arguable that Mitsubishi can establish on appeal to the requisite standard on an application for section 39 permission that it is an abuse of process by relitigation for Mr Kowalski to contend that the Heads of Agreement contravened section 119 (at [117]).
6. It is not reasonably arguable that Mitsubishi can establish on appeal to the requisite standard on an application for section 39 permission that there is no basis on which Mr Kowalski could revisit before the Tribunal the issue of compliance of either version of the Heads of Agreement with section 119 (at [123]).
7. Mitsubishi’s third ground of appeal does not apply to the application to set aside Deputy President McCouaig’s 2003 order and in any event is not reasonably arguable on appeal to the requisite degree (at [128]).
8. There is no basis to revoke the permission (at [131]-[132]).
9. Permission to appeal refused (at [133]).
Supreme Court Act 1935 (SA) Sections 39 and 50; Workers Rehabilitation and Compensation Act 1986 Sections 88H, 97B and 119; Federal Court Rules 1979 (Cth) Section O 46 Rule 7; Federal Court of Australia Act 1976 (Cth) Sections 4 and 24; Industrial Proceedings Rules 2010 (SA) Section 29; Fair Work Act 1994 (SA) Section 187, referred to.
Attorney-General for the State of South Australia v Kowalski [2014] SASC 1; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42, (2003) 128 FCR 353; Jones v Vans Colina [1997] 1 All ER 768; 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 Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57; Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota) [2016] SASCFC 8, (2016) 124 SASR 427; Manolakis v District Registrar South Australian District Registry Federal Court of Australia [2008] FCAFC 162, (2008) 170 FCR 426; Mitsubishi Motors Australia Ltd v Kowalski [2000] SAWCT 123; Morgan v WorkCover Corporation [2013] SASCFC 139, (2013) 118 SASR 297; Walton v Gardiner (1993) 177 CLR 378; Workers Rehabilitation & Compensation Corporation v JR Engineering Services Pty Ltd (1995) 180 LSJS 276 (1995) 180 LSJS 276, discussed.

ATTORNEY-GENERAL (SA) v KOWALSKI (NO 7)
[2018] SASC 62
BLUE J:

This is an application by Mitsubishi Motors Australia Limited (Mitsubishi) for permission to appeal against the giving of permission pursuant to section 39 of the Supreme Court Act 1935 (SA) (the Supreme Court Act) to Mr Kowalski to institute proceedings in the South Australian Employment Tribunal to set aside certain decisions of the Workers Compensation Tribunal or alternatively an invitation to revoke the permission.
In January 2014 I made an order pursuant to section 39 of the Supreme Court Act prohibiting Mr Kowalski from instituting proceedings without the prior permission of the Court.[1]
[1] Attorney-General for the State of South Australia v Kowalski [2014] SASC 1.
In February 2018 I gave permission to Mr Kowalski to file an application in the South Australian Employment Tribunal pursuant to section 88H of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) to set aside:
1.the judgment of Deputy President McCouaig dated 7 May 2003 in the Workers Compensation Tribunal in Kowalski v Mitsubishi Motors Australia Ltd[2] in action 1539 of 2003 (Deputy President McCouaig’s 2003 decision);
2.the judgment of Deputy President McCouaig dated 13 August 2001 in the Workers Compensation Tribunal in Kowalski v Mitsubishi Motors Australia Ltd[3] in action 4163 of 1998 (Deputy President McCouaig’s 2001 decision);
3.the judgment of the Full Bench dated 19 August 2002 in the Workers Compensation Tribunal in Kowalski v Mitsubishi Motors Australia Ltd[4] dismissing Mr Kowalski’s appeal against Deputy President McCouaig’s 2001 decision (the Full Bench’s 2002 decision).
[2]    [2003] SAWCT 48.
[3]    [2001] SAWCT 93.
[4]    [2002] SAWCT 76.
I refer to the South Australian Employment Tribunal and its predecessor the Workers Compensation Tribunal collectively as the Tribunal.
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.
In addition to the 26 October and 27 October versions, there is also a draft Heads of Agreement in existence that was not executed by any party (the draft version). It contains in typed form some of the handwritten changes appearing on the 26 October version. However it also contains subclauses that do not appear in either the 26 October or 27 October version.
I refer collectively to the 26 October and 27 October versions as the Heads of Agreement.
Clause 4 of the Heads of Agreement (in all three forms) included the following relevant provisions:
4. In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1Not 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 and 2 hereof …
…
4.3To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL.
…
In November 1998 Conciliation Officer Richer in the Tribunal in action 4163 of 1998 made determinations by consent under section 97B(1)(b) of the Act dismissing Mr Kowalski’s April 1998 claim for compensation.
In November 1999 Mr Kowalski filed in the Tribunal an application under section 88H of the Act to set aside Conciliation Officer Richer’s determination dismissing his heart attack/depression claim on grounds (as subsequently amended) including the ground that those parts of the Heads of Agreement that purported to bar his claims to compensation under the Act were rendered void by section 119 of the Act as purporting to exclude, modify or restrict the operation of the Act. In addition to an order setting aside the determination, Mr Kowalski also sought:
An order or declaration pursuant to s 119 of the Act declaring null and void those parts (only) of the Agreement signed by the parties on 27 October 1998 that are contrary to s 119 of the Act, and in particular those parts of par 1.1 and par 2.3 that purport to exclude, modify or restrict the operation of the Act.
Subsection 119 of the Act as at October 1998 provided:
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.
In August 2000 the Full Bench held in Mitsubishi Motors Australia Ltd v Kowalski[5] that the Tribunal’s jurisdiction under section 88H was limited to setting aside orders of the Tribunal and it had no jurisdiction to make any order in relation to the Heads of Agreement. President Judge Jennings and Deputy President Judges Parsons and Gilchrist said:
The Tribunal has jurisdiction to set aside an order because s 88H expressly gives that power. However, the Tribunal’s jurisdiction is limited to the setting aside of the consent order. It has no jurisdiction to make any orders or declarations whatsoever in relation to the Heads of Agreement.[6]
[5] [2000] SAWCT 123.
[6] At [15]
On 14 August 2001 Deputy President McCouaig delivered reasons for judgment dismissing Mr Kowalski’s set aside application. Deputy President McCouaig held that the Tribunal had no jurisdiction under section 88H to set aside Conciliation Officer Richer’s consent determination because it was deemed to be a decision of Mitsubishi and section 88H only applied to decisions of the Tribunal. Deputy President McCouaig said:
The worker’s belated amendment of his application highlighted the previously overlooked fact that the consent determination recorded by Conciliation Officer Richer on 3 November 1998 was a determination made pursuant to s 97B of the Act. As such, his decision was to be treated as a decision of the relevant compensating authority, ie Mitsubishi, and was reviewable: s 97B(3). It follows that the consent determination was not a judgment or order of the Tribunal within the meaning of s 88H of the Act. S 88H is therefore not available to the worker to invoke the jurisdiction of the Tribunal in so far as he seeks to have the decision of Conciliation Officer Richer set aside on the ground that it was obtained by Mitsubishi’s fraud, misrepresentation or unconscionable conduct.
…
To briefly reiterate, s 97B(3) of the Act applies to Conciliation Officer Richer’s decision on 3 November 1998. This means that it is to be treated as a decision of Mitsubishi and not as a formal or final order of the Tribunal. It also means that it is a reviewable decision.
It follows that s 88 H is unavailable to the worker as a means by which to seek to set aside or vary the said decision.[7]
[7] [2001] SAWCT 93 at [25], [99]-[100].
Nevertheless, Deputy President McCouaig proceeded to purportedly decide that the Heads of Agreement did not exclude, modify or restrict the operation of the Act within the meaning of section 119. Deputy President McCouaig said:
S 119 does not require that every resolution of every claim by every worker must be approved by the Corporation. This is not what the section says, as it so easily could have if that had been Parliament’s intention. Rather, I think the intent of s 119 is to safeguard worker’s rights and benefits under the Act by declaring that contractual attempts to exclude, modify or restrict the operation of the Act without the consent of the Corporation will be deemed void and of no effect.
There can be no suggestion here of the worker being denied his due rights and benefits under the Act, or of anyone trying to circumvent the operation of the Act. This is a case of a worker, well aware of his rights and benefits under the Act, choosing to compromise his disputed entitlements in respect of existing claims on terms that he was pleased with at the time and thereupon, in conjunction with Mitsubishi’s solicitors, carefully ensuring that his claims were properly finalised in accordance with the Act.
…
The parties' ability to consent to an acceptance or, as here, rejection of a claim for compensation is fundamentally within the ambit of the Act. One of the stated objects of the Act is "to reduce litigation and adversarial contests to the greatest possible extent" and there is a heavy focus in the current scheme on conciliated outcomes. To circumvent, or attempt to circumvent, the operation of the Act is quite another thing
I find that neither the settlement reached by the parties nor the Agreement recording that settlement purported to exclude, modify or restrict the operation of the Act so as to give rise to any application of s 119 of the Act”.[8]
[8] At [111]-[115].

Mr Kowalski appealed to the Full Bench against the decision of Deputy President McCouaig pursuant to section 86 which confined appeals to questions of law. On 19 August 2002 President Judge Jennings and Deputy President Judges Cawthorne and McCusker dismissed Mr Kowalski’s appeal, holding that it was incompetent because no question of law was involved. President Senior Judge Jennings (with whom Deputy President Judge Cawthorne agreed) said:
I have had regard to the facts and circumstances of all appeals and associated actions and other applications before the Full Bench, and have had regard to all of the submissions and in particular those of Ms Layton QC in relation to same (which I accept and adopt). In particular with regard to action 4163 of 1998 I agree that the findings of the learned Deputy President were on matters of fact; that his findings were open to him on the evidence; and I determine this Tribunal lacks jurisdiction to hear it as there is no question of law involved.[9]
[9] [2002] SAWCT 76 at [44].
Deputy President Judge McCusker (with whom Deputy President Judge Cawthorne also agreed) said:
Two things must be stated at the outset. The first is that we are concerned to examine the decision of the Deputy President and not hear the case de novo. The worker’s address often took the latter form, though it is hard to give his submissions a particular categorisation given the disjunctive and disseminated nature of the worker’s discourse. The second matter is that our mandate to consider the appeal is limited by s 86(1) to questions of law.
What constitutes a question of law can undoubtedly be a vexed question. …
…
Properly applied and understood the failure of the appellant at the jurisdiction hurdle deals with the majority of the worker’s complaints. …
That he was “conned” as he claimed, or at all, was the very fact rejected. This matter was decided against the worker on credit and to that extent raises no question of law. However in the hope some further comments may give some assistance to the worker in appreciating he has not suffered the gross injustice he claims, I detail the following.[10]
[10] At [70].
Deputy President Judge McCusker then briefly addressed some of Mr Kowalski’s contentions to assist him in appreciating that he had not suffered the gross injustice that he claimed. Deputy President Judge McCusker said:
Firstly the Deputy President’s conclusion in respect to s 119 was correct. There was no evidence of a proscribed purpose. We note that in the Workers Compensation Act 1971 (“the 1971 Act”) a similar provision operated (s 86). That agreements ipso facto did not operate to deny the requisite purpose was implicit in the reasoning of the Court in General Motors-Holdens Ltd v D’Andrea (1985) 122 LSJS 301. The construction of s 119, as may be said to underlie the worker’s argument, is wrong.[11]
[11] At [75].
Deputy President Judge McCusker considered that the agreement could not in any event be set aside, and particularly only partially set aside as Mr Kowalski sought, for the following reasons:
… given the findings that the Deputy President there was really no ground afforded to the worker to hope for the agreement to be struck down, more particularly so on the, “part only”, basis contended by him: see Mohtar v Mohtar and Seputis. In Paino v Hofbauer McHugh JA (as he then was) stated the principle as follows:-
“Nevertheless, when a party asks that a consent order based on a contract should be set aside or varied and the underlying contract could not be set aside or varied, the case would need to be exceptional before the Court would exercise its discretion in favour of an applicant. …”
Paino’s case and the principle it contains, must be applied in the context of the findings of fact made by the Deputy President in this case. It was the agreement that was the central and determining feature of the issue being agitated by this worker...[12]
[12] At [77]-[78] (Citations omitted)
Given that Deputy President McCouaig held that he had no jurisdiction to set aside Conciliation Officer Richer’s determination and the Full Bench held that it had no jurisdiction on appeal, it might have been expected that, in any future proceeding in which Mitsubishi relied on the Heads of Agreement in answer to a compensation claim by Mr Kowalski when the Tribunal did have jurisdiction to determine the section 119 issue, the Tribunal would determine that issue on its merits.
However, in Kowalski v Mitsubishi Motors Australia Ltd[13] in action 1539 of 2003 Deputy President McCouaig on 7 May 2003 struck out an application by Mr Kowalski for an expedited decision in respect of a claim made in February 2003 for weekly payments as an abuse of process. Deputy President McCouaig held that Mr Kowalski was seeking impermissibly to re-litigate the validity of the Heads of Agreement which had been conclusively determined by the Full Bench on 19 August 2002. Deputy President McCouaig said:
The claims for compensation that the worker is now seeking to agitate were in fact finalised by an agreement reached between the parties in October 1998 following mediation. The efficacy and finality of this agreement has been confirmed by previous decisions of this Tribunal, most recently by the Full Bench of the Tribunal in Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76 delivered on 19 August 2002.
…
The worker’s current attempt to relitigate issues previously decided against him necessarily impugns the previous decisions of this Tribunal and in the circumstances constitutes a clear abuse of process. The respondent is entitled to the relief it seeks. The worker’s application for expedited decision lodged on 10 March 2003 is struck out as an abuse of process.[14]
[13] [2003] SAWCT 48.
[14] At [6], [8].
Mr Kowalski filed an appeal against Deputy President McCouaig’s judgment. On 7 August 2003 Mr Kowalski did not appear at the hearing of the appeal and the Full Bench dismissed it.
In Attorney-General for the State of South Australia v Kowalski,[15] I concluded that it was reasonably arguable by Mr Kowalski that provisions of the Heads of Agreement were rendered void by section 119. I gave detailed reasons for reaching that conclusion.[16] I said:
If I had been required to decide the proper construction of section 119(1) of the Act, I would have been disposed to hold that it precludes compromise agreements, without the consent of WorkCover, other than agreements confined to past entitlements the subject of specific claims. However, to decide the issues arising in this action between the Attorney‑General and Mr Kowalski, it is neither necessary nor desirable to decide the proper construction of section 119(1) but merely to decide what was reasonably arguable by Mr Kowalski before the Workers Compensation Tribunal. Mitsubishi is not a party to this action and has not been heard on this issue.[17]
[15] [2014] SASC 1.
[16] At [1062]-[1088].
[17] At [1088].
My reasons for reaching this conclusion included the following:
Taking into account the legislative entitlements given by the Act to workers in absolute terms, the administrative decision-making role given to exempt employers to determine a worker’s entitlements and the protections built in to sections 42, 42A and 43, it is an unlikely construction of the Act that those entitlements and protections could simply be side-stepped by agreement between an exempt employer and a worker under which the worker forever renounced his or her rights under sections 32, 35 and 43 in return for a lump-sum payment.[18]
[18] Compare Josephson v Walker (1914) 18 CLR 691 at 700-701 per Isaacs J.
In Lieberman v Morris,[19] Mrs Morris entered into a contract with Mr Morris that, in return for Mr Morris agreeing to bequeath to her at least £500, she would not make any claim under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). After Mr Morris died and left £500 to Mrs Morris, she brought a claim under the Act. The High Court (Latham CJ dissenting) held that the contract was void because it was implied by the Act that a person could not agree not to exercise his or her rights given under the Act…
[19] (1944) 69 CLR 69.
In the absence of section 119, it would be arguable that the clear intendment of the 1986 Act is that a worker cannot contract out of his or her rights conferred by the Act to past and future weekly payments, reimbursement of medical expenses and lump sum compensation for non‑economic loss. It is arguable that there is a public policy effected by the Act of ensuring that injured workers are compensated out of levies paid by employers rather than becoming reliant upon public funds for financial support and medical treatment.
Under the 1971 Act, no agreement between the employer and employee for payment of a lump sum under the Act (whether under sections 69, 70 or 72) was valid unless and until the Registrar had assessed it to ascertain whether it may work injustice to the worker and had registered the agreement after forming a satisfactory opinion.[20] The fact that the predecessor to the 1986 Act took this approach renders it less likely that the 1986 Act abandoned any such controls and permitted exempt employers to enter into agreements compromising a worker’s rights regardless of whether they may work injustice to the worker.
[20] Workers Compensation Act 1971 (SA) s 35.
Part 6A Division 4 of the 1986 Act provides for conciliation proceedings. Section 92 contains several protections for a worker participating in conciliation proceedings. Conciliation must be conducted by a presidential member or conciliation officer of the Workers Compensation Tribunal.[21] Each party must disclose to the conciliator all evidentiary material in the party’s possession relevant to the dispute and, at the request of another party, give the party access to that material.[22] Section 92 only provides for settlement of an existing claim and not of any future unspecified claims. The provisions of the Act point towards a settlement agreement only being binding if it is achieved with the framework of the protections provided by the Act.
[21] Workers Rehabilitation and Compensation Act 1986 (SA) s 92(1)(a).
[22] Workers Rehabilitation and Compensation Act 1986 (SA) s 92(1)(b). The conciliator may agree to material not being provided if it is confidential surveillance material under s 92(2)(a).
..
Section 119(1) performs two functions. First, it renders void any agreement or arrangement purporting to exclude, modify or restrict the operation of the Act. Secondly, it empowers WorkCover to consent to such an agreement and permits such an agreement or arrangement if WorkCover grants its consent. Section 119(1) operates in harmony with section 63(3aa) which requires WorkCover’s consent to an assessment under section 42A by an exempt employer.
…
Section 119(1) renders void an agreement entered into without WorkCover’s consent purporting to “exclude, modify or restrict the operation of this Act.” In Caltex Oil (Australia) Pty Ltd v Best,[23] section 7(1) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) rendered void an agreement that “purports to exclude, limit or modify, or is otherwise inconsistent with, the operation of provisions of this Act”. Section 16 of that Act precluded a franchisor from terminating a franchise agreement other than on specified grounds contained in that section. Caltex entered into an agreement with a service station operator entitling Caltex, if inter alia Caltex reasonably formed the opinion that the business was being conducted in a manner detracting from Caltex’s commercial reputation or goodwill, to revoke the licence and authority granted. In that event, the agreement would cease to be a franchise agreement to which the Commonwealth Act applied. The High Court held that this clause was void. Mason CJ, Gaudron and McHugh JJ (Dawson J agreeing) said:
[23] (1990) 170 CLR 516.
In essence, s 7(1) prohibits contracting out of the statute.... The most obvious and direct form of contracting out of a statute is the case in which a party covenants under seal or agrees for valuable consideration not to make a claim for a benefit for which the statute provides: see Lieberman v Morris ... But contracting out of a statute is not limited to cases in which a party simply foregoes or waives a benefit directly conferred upon the party by the statute...
An express statutory prohibition against contracting out renders void or inoperative contractual provisions which are inconsistent with the statute. Inconsistency between contract and statute is not confined to literal conflicts or collisions between the contractual provisions and the statutory provisions. Inconsistency in this context arises whenever there is a conflict between a contractual provision or the operation of such a provision and the purpose or policy of the statute. So, if the operation of a contractual provision defeats or circumvents the statutory purpose or policy, then the provision is inconsistent in the relevant sense and falls within the injunction against contracting out.[24]
[24] Ibid at 522. See also Toohey J at 531-532.
Section 119 plainly applies to a contract of employment which purports to exclude or modify in advance a worker’s entitlements to workers compensation. However, there is nothing in the wording, context or apparent purpose of section 119 which confines its operation to contracts entered into before a worker suffers a compensable disability.
In Kerekes v The State of South Australia,[25] Ms Kerekes was employed as a teacher. In 1994, Ms Kerekes and the State entered into an agreement compromising her claims for workers compensation for $30,000. It was a term of the agreement that she undertook to repay to the State any amounts of compensation (other than for medical expenses) which she might receive in future under the 1986 Act. Subsequently, in 2000, Ms Kerekes requested the State to establish a rehabilitation program. Before the Workers Compensation Tribunal, the State argued that it was entitled to rely upon estoppel arising from the agreement even if it could not rely upon the agreement directly because of the provisions of the Act. Olsson AJ held that the term of the agreement was void. He said:
[25] [2003] SAWCT 83.
The argument advanced by Mr Lines commences with the proposition that all that his client has accepted since 30 September 1987 are liabilities to pay medical expenses related to transient periods of incapacity of the nature of secondary disabilities, as reserved by the terms of the settlement arrived at between the parties in 1994.
He then contends that, even if the worker can demonstrate that there are compensable disabilities suffered between September 1987 and her ultimate resignation in June 1994 that are continuing to affect her, then, in the agreements entered into by her with her employer, she has acknowledged that she is not suffering from any continuing disability arising from her employment since the Act came into operation. That acknowledgment is, he says, a representation upon which the employer relied in arriving at a settlement with her and gives rise to an estoppel against the worker.
When his attention was directed to the provisions of s 119 of the Act, he submitted … that he was, nonetheless, entitled to rely on common law estoppel in the present case.
…
Prima facie, the agreements entered into between the worker and the employer on 28 June 1994 were in conflict with both of the above statutory provisions. They provided for a type of indemnity prohibited by the statute and also had, as their practical effect, a contracting out of the Act. To that extent they were, in my opinion, clearly void.
…
In the instant case, the worker was required to enter into agreements, as collateral to the acceptance of a termination package in relation to her employment, that were, in substance, inherently unlawful because they conflicted with specific provisions of the Act. As is pointed out by the learned author of Spencer Bower and Turner "Estoppel by Representation" Third Edition at par 140, par 141 an estoppel may not be relied upon in aid of giving effect to what would, in any event, remain an unlawful arrangement, of which it is an integral portion. To do so would be to sanction and condone a contravention of what is a statutory illegality. That alone is an answer to the employer's reliance on estoppel.[26]
In his reasons for decision dated 14 August 2001, Deputy President McCouaig suggested that to construe section 119 as precluding compromise agreements would result in practical difficulties in resolving claims.[27] However, section 119 does not preclude compromise agreements: it merely requires the consent of WorkCover. No insurmountable difficulty should be occasioned if exempt employers are required to seek and obtain the consent of WorkCover to a compromise agreement.[28]
[26] Ibid at [81]-[83], [85] and [89].
[27] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [111]-[114].
[28] Attorney-General for the State of South Australia v Kowalski at [1069]-[1085] [2014] SASC 1 (Citations in original).
In January 2016 Mr Kowalski applied for permission pursuant to section 39 of the Supreme Court Act to file an application in the Tribunal pursuant to section 88H of the Act to set aside the Full Bench’s 2002 decision. In April 2017 he applied for permission also to apply to set aside Deputy President McCouaig’s 2001 and 2003 decisions. The applications were supported by affidavits sworn on 7 January 2016, 24 November 2016, 24 May 2017 and 3 July 2017. I heard Mr Kowalski’s applications on an ex parte basis in accordance with general practice.[29]
[29] Although on occasion in other matters I have directed that notice be given to the party against whom permission is sought to institute proceedings.
In his May 2017 affidavit, Mr Kowalski deposed to the fact that he had discovered a copy of a facsimile from Mr Walsh QC dated 26 October 1998 containing the 26 October version of the Heads of Agreement. He deposed to the fact that his attention was not drawn by Mitsubishi’s lawyers to the changes made from the 26 October version whereby the words “(income maintenance and medical expenses)” were omitted from clause 1 and the words “as an ex gratia payment” were inserted into clause 2.2.
Mr Kowalski contended that the 27 October version was executed non est factum and is null and void. Mr Kowalski contended that, if the 26 October version had been before Deputy President McCouaig and the Full Bench, they would or might have reached a different conclusion as to whether the Heads of Agreement was in breach of section 119 of the Act.
I decided to give permission to Mr Kowalski to apply to set aside the three Tribunal decisions because of a combination of the following four matters.
First I considered that it was reasonably arguable that the provisions of the 26 October version and the 27 October version of the Heads of Agreement purporting to preclude Mr Kowalski from pursuing existing or future claims against Mitsubishi were void as being in contravention of section 119 (essentially for the reasons referred to above).
Secondly I considered that it was reasonably arguable either that:
1.because Deputy President McCouaig in 2001 and the Full Bench in 2002 had held that they had no jurisdiction to determine the matter before them (the set aside application and appeal respectively), such observations as were made concerning section 119 had no binding force as between the parties[30] and in any event could not be regarded as a definitive construction of the meaning and effect of section 119; or
2.the Full Bench did not purport to decide the construction of section 119 or its effect on the Heads of Agreement because, although Deputy President McCusker said in a single paragraph that Deputy President McCouaig’s conclusion in respect to section 119 was correct, it is not clear what this meant in context (including that he had already held that the Full Court lacked jurisdiction and he was only making observations for the benefit of Mr Kowalski at this point) and even if he intended to decide the point of construction, President Judge Jennings did not address the question at all[31] and Deputy President Cawthorne cannot be regarded as having decided the point of construction when he only said that he agreed generally not only with Deputy President McCusker but also with President Judge Jennings; or
3.Deputy President McCouaig in 2003 overlooked or misunderstood the matters referred to in 1 above or 2 above and otherwise would or should have come to a different decision in action 1539 of 2003.
[30] See my analysis in Attorney-General v Kowalski [2015] SASC 123 at [88]-[191].
[31] President Judge Jennings said in the course of concluding that the Tribunal lacked jurisdiction because no question of law was involved that he accepted and adopted the submissions of Ms Layton QC. I consider that it is not reasonably arguable to the requisite degree on appeal that he thereby adopted Ms Layton QC’s submission that Deputy President McCouaig’s interpretation of section 119 was correct (see [12]) because Ms Layton QC had submitted that there were no errors of law and the Full Bench had no jurisdiction on appeal (see [7]) and President Judge Jennings only referred to the submissions by Ms Layton QC in the course of concluding that the Tribunal lacked jurisdiction because no question of law was involved.

Thirdly and in the alternative to the second matter, I considered that it was reasonably arguable that, if the 27 October version was not binding or should be rectified to accord with the 26 October version because Mitsubishi’s representatives failed to explain to Mr Kowalski the insertion of “ex gratia” and deletion of “(income maintenance and medical expenses)”, Deputy President McCouaig in 2001 and the Full Bench in 2002 might have concluded (to the extent that they addressed the issue of illegality at all) that the 26 October version offended section 119. This is because it was more strongly arguable that the 26 October version provided for payment of $125,308.57 as workers compensation under the Act for future disability and provided for full and final settlement of Me Kowalski’s entitlements to compensation under the Act (income maintenance and medical expenses). It may be that, regardless of the issue of Mr Kowalski’s knowledge and understanding, the 26 October version throws light on the section 119 issue in any event.
Fourthly I considered that, if permission were to be given to Mr Kowalski to apply to set aside Deputy President McCouaig’s 2003 decision, permission should also be given at the same time to apply to set aside Deputy President McCouaig 2001 decision and the Full Bench’s 2002 decision to ensure that there is not a procedural lacuna (or potential multiplicity of actions) in the Tribunal whereby it is suggested that the Tribunal cannot consider setting aside Deputy President McCouaig’s 2003 decision while the other two decisions remain on foot. I considered that there should be no significant additional time or cost expended if Mr Kowalski applies to set aside the three decisions compared to an application to set aside one or two only of the three decisions.
I considered that there was no reason to think that Kowalski’s purpose in instituting the proposed proceeding in the Tribunal was an ulterior purpose within the meaning of section 39(5)(a) of the Supreme Court Act.
On 13 February 2018 I gave permission to Mr Kowalski to institute the proposed proceeding in the Tribunal to set aside the three decisions in question.
On 15 February 2018 Mr Kowalski filed in the Tribunal an application to set aside the decisions of Deputy President McCouaig in 2003 and 2001 and the Full Bench in 2002 (the new proceeding). On 22 February 2018 the new proceeding was forwarded to Mitsubishi’s claims manager, Gallagher Basset.
On 27 February 2018 Mitsubishi applied for permission to appeal against my grant of section 39 permission to institute the new proceeding. Mitsubishi subsequently produced a draft notice of appeal.
Hearing of Mitsubishi’s application
In addition to the affidavits referred to above, Mr Kowalski tendered at the hearing of Mitsubishi’s application two further affidavits sworn on 5 March and 13 March 2018.
Mr Kowalski contends that no appeal lies pursuant to section 50 of the Supreme Court Act against a grant of permission to institute proceedings pursuant to section 39. Mr Kowalski contends in the alternative that Mitsubishi has no standing to appeal. Mitsubishi takes issue with both contentions.
Mitsubishi contends that permission to appeal should be granted because it is reasonably arguable that I should not have granted permission to Mr Kowalski to institute the new proceeding. The principal ground sought to be advanced on appeal is that permission should have been refused because the new proceeding is an abuse of process as comprising a collateral attack on findings of Judge Muecke in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd.[32] Mitsubishi contends that Judge Muecke decided as between Mr Kowalski and AMP Superannuation Ltd and Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd that Mr Kowalski knew of and understood the relevant changes from the 26 October version to the 27 October version and that the Heads of Agreement does not offend section 119 of the Act and Mr Kowalski is precluded from agitating those issues as against Mitsubishi in the new proceeding. This contention is the subject of ground 2 of the proposed notice of appeal.
[32] [2017] SADC 57.
Mitsubishi also contends that, if Mr Kowalski is precluded thereby from contending that the 27 October version is not binding and the relevant wording is the wording of the 26 October version, there is no basis on which he can revisit before the Tribunal the issue of compliance of the Heads of Agreement with section 119 of the Act. This contention is the subject of ground 3 of the proposed notice of appeal.
Mitsubishi also contends that the new proceeding is inutile in that setting aside the relevant orders of the Tribunal would not affect the consent order made by Conciliation Officer Richer. This contention is the subject of ground 4 of the proposed notice of appeal.
Mitsubishi contends that, for one or other of these three reasons, permission to appeal should have been refused. This conclusion is the subject of ground 1 of the proposed notice of appeal but Mitsubishi clarifies that this is not an independent ground of appeal but dependent on grounds 2, 3 or 4.
Mr Kowalski takes issue with each of Mitsubishi’s contentions.
Does an appeal lie?
Section 50 of the Supreme Court Act provides that, subject to the section, “an appeal lies to the Full Court against a judgment of the court constituted of a single judge”.
Subsection 39(1)(a) empowers the Court to prohibit a person by whom vexatious proceedings have been persistently instituted from instituting further proceedings without the prior permission of the Court.
The issue is whether the giving of permission is a “judgment” of the court within the meaning of section 50. This turns on the question whether the grant of permission is a judicial or administrative act.
In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs[33] the Full Court of the Federal Court considered whether a direction (pursuant to order 46 rule 7A of the Federal Court Rules 1979 (Cth)) by a Judge to the Registrar that a document is or is not to be issued comprises a judgment within the meaning of section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (and defined in section 4) which confers a right of appeal against judgments of the Court constituted by a single Judge in similar terms to the right of appeal conferred by section 50 of the Supreme Court Act. Lee, Whitlam and Jacobson JJ said:
The word “judgment” as used in O 52 r 10 may be taken to refer to an “operative judicial act”. A judgment as defined in s 4 of the Act has the same meaning as “judgments, decrees, orders and sentences” used in s 73 of the Constitution, namely, a formal order made by a court which disposes of, or deals with, the proceeding then before it. Section 73 is confined to decisions made in the exercise of judicial power.
As Barwick CJ said in Minister for Works for the Government of Western Australia v Civil and Civic Pty Limited:
“It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. It is not enough that the judge or Court exercises a jurisdiction of the Supreme Court in a matter judicial in its substance. The judge or Court must authorizedly give a binding judgment which determines or settles rights.”
…
It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.[34]
[33] [2003] FCAFC 42, (2003) 128 FCR 353.
[34] At [3]-[4], [19] (Citations omitted).
In Manolakis v District Registrar South Australian District Registry Federal Court of Australia[35] the Full Court of the Federal Court considered the same question and reached the same conclusion as was reached in Bizuneh. Gray, Branson and Besanko JJ said:
In our view, having regard to the weight of the above authorities, it should now be accepted in this Court that a direction of a Judge under O 46 r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court of Australia Act. If a different view is to be taken, that view should be expressed by the High Court. In our view, the reasoning of Toohey J in Legal Aid Commission v Edwards and of the Full Court in Bizuneh concerning the necessary attributes of a judicial, as opposed to an administrative decision, even where the decision is taken within the framework of the judicial branch of government is persuasive.[36]
[35] [2008] FCAFC 162, (2008) 170 FCR 426.
[36] At [20] (Citations omitted).
In Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota)[37] the Full Court considered whether a direction (pursuant to rule 29(4) of the Industrial Proceedings Rules 2010 (SA)) by an Industrial Magistrate that a document be struck from the file as an abuse of process comprises a judgment within the meaning of subsection 187(1) of the Fair Work Act 1994 (SA) which confers a right of appeal against judgments of the Court constituted by a single Judge in similar terms to the right of appeal conferred by section 50 of the Supreme Court Act. The Court held that the exercise of power conferred by rule 29(4) was judicial in nature and therefore subject to appeal; whereas a decision that a document not be accepted for filing was administrative in nature.[38] The Court said:
The decision of the Industrial Magistrate was a judicial one. If an application or document is not filed, it is not capable of initiating a proceeding or a step in a proceeding. The decision of a Registrar not to accept a document is an administrative one whether or not the Registrar acts on his or her own motion or at the direction of a Judge. … the Court is entitled to insist on the filing of documents which are intelligible and in substantially the prescribed form. In the case of initiating proceedings, they must also appear on their face to raise a justiciable controversy. Interlocutory proceedings must appear to relate to the action in which they are filed. Mr Kronen’s documents did that. …. Once a matter is accepted for filing, any subsequent disposition of the matters it raises is judicial in nature.[39]
[37] [2016] SASCFC 8, (2016) 124 SASR 427.
[38] At [32]-[33] per Kourakis CJ, Blue and Nicholson JJ.
[39] At [32].
The question in the present case is whether the distinction between a judicial and administrative act turns on whether the act is performed before the institution of the substantive proceeding (as Mr Kowalski contends) or on whether the criterion involves the substantive merits of the substantive proceeding as opposed to matters of form (as Mitsubishi contends).
In Jones v Vans Colina[40] a Judge of the High Court granted leave ex parte to Jones (a declared vexatious litigant) to institute proceedings against Vans Colina. Vans Colina applied to a Judge to revoke the grant of leave. The Judge held that the Court had no power to revoke the grant of leave on the application of Vans Colina who was not a party to the vexatious litigant proceeding. The English Court of Appeal upheld that decision. This decision is of limited assistance because it addresses revocation as opposed to appeal. The Court of Appeal expressed the view obiter that no appeal would lie against the grant of leave.[41] However, it is not clear to what extent this view was influenced by the fact that the legislation provided that no appeal lay from a decision refusing leave.
[40] [1997] 1 All ER 768.
[41] At 773g.
In Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[42] Doyle CJ held that this Court has inherent power to revoke a grant of leave pursuant to section 39 of the Supreme Court Act to institute a proceeding.[43] This decision also is of limited assistance because it addresses revocation as opposed to appeal, it addresses the inherent power of the court and Doyle CJ said that no submissions were made by the parties on the question.[44]
[42] [2006] SASC 159.
[43] At [52]-[53].
[44] At [43].
In Bizuneh[45] the Full Court of the Federal Court expressed the view obiter that, when a direction has been made that a document not be accepted for filing without the leave of a judge, an application for such leave would be determined in the exercise of judicial power.
[45] [2003] FCAFC 42 at [18].
There is no definitive decision whether the grant of permission is a judicial or administrative act or whether it can be the subject of appeal under section 50 of the Supreme Court Act or equivalent provisions. As I am able to determine Mitsubishi’s application on other grounds, it is preferable that this question be left for resolution in a matter in which it is determinative.
Locus standi of Mitsubishi to appeal
Mr Kowalski contends that Mitsubishi has no standing to appeal.
In Jones v Vans Colina[46] the English Court of Appeal held that Vans Colina did not have locus standi to apply for revocation of leave to Jones to institute a proceeding against him because he was not a party to the vexatious litigant proceeding. As observed above, this decision is of limited assistance because it addresses revocation as opposed to appeal.
[46] [1997] 1 All ER 768.
In Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[47] Doyle CJ declined to follow Jones v Vans Colina in this respect. However, this decision also is of limited assistance for the reasons given above.
[47] [2006] SASC 159 at [51].
There is no definitive decision whether the proposed defendant in proposed proceedings for which permission to institute has been given has locus standi to appeal against the grant of permission. As I am able to determine Mitsubishi’s application on other grounds, it is preferable that this question be left for resolution in a matter in which it is determinative.
Issues on application for permission to appeal
I proceed to consider Mitsubishi’s application for permission to appeal on the assumption (without deciding) that an appeal is competent and Mitsubishi has locus standi to appeal (if permission to appeal is granted).
On an application for permission to appeal against an interlocutory order, an applicant for permission must ordinarily demonstrate that:
1.the correctness of the order is attended with sufficient doubt to warrant being reconsidered on appeal; and
2.substantial injustice will be caused to the applicant if the order stands.[48]
[48] SA Government Financing Authority v Bank of New Zealand [2002] SASC 56 at [13] per Gray J (with whom Nyland and Martin JJ agreed); Landmark Operations Limited v J Tiver Nominees Pty Ltd [2009] SASC 185 at [21]-[22] per Bleby J (with whom Vanstone and White JJ agreed).
On an application for permission to appeal against section 39 permission to institute proceedings, analogous issues arise, namely whether the proposed appeal has sufficient merit and whether substantial injustice would be caused if the permission were to stand.
Abuse of process by relitigation
The principal ground sought to be advanced by Mitsubishi on appeal is that permission should have been refused because the new proceeding is an abuse of process as comprising a collateral attack on findings of Judge Muecke in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (ground 2).
Ground 2 of the proposed notice of appeal is in the following terms:
The learned Judge erred in mixed law and fact in that he ought to have found that the Proposed Action amounted to an abuse of process insofar as
2.1it involves a collateral attack on findings of Chief Judge Muecke in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57; and;
2.2it will give rise to a multiplicity of actions relating to the enforceability of the Heads of Agreement dated 27 October 1998.
Mitsubishi does not contend that Mr Kowalski’s purpose in bringing the Employment Tribunal proceeding is to mount a collateral attack on Judge Muecke’s decision and such a contention would in any event be untenable given the timing of Mr Kowalski’s application for permission to institute the proceeding.
Legal principles: abuse of process by relitigation
Mitsubishi was not a party to the action in which Judge Muecke delivered his judgment. Mitsubishi accepts (at least for the purpose of application for permission to appeal and any appeal) that the doctrines of res judicata and issue estoppel do not apply. Mitsubishi relies instead on the principle of abuse of process by relitigation.
In Walton v Gardiner[49] Mason CJ, Deane and Dawson JJ said that:
proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[50]
[49] (1993) 177 CLR 378.
[50] At 393.
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

In Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[64] (the superannuation action) Mr Kowalski sued Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (Mitsubishi Superannuation) and AMP Superannuation Ltd (AMP Superannuation). Mitsubishi Superannuation had been the original trustee of the Mitsubishi Motors Australia Staff Superannuation Fund (the Fund) but AMP Superannuation had for some years been the current trustee. I refer to the trustee from time to time of the Fund as the Trustee.
[64] [2017] SADC 57.
Mr Kowalski sought a declaration that the defendants breached their fiduciary duty to him and an order directing AMP Superannuation to consider his eligibility for a TPD benefit according to law.
AMP Superannuation applied for summary judgment. It contended that it had an unanswerable defence to the action, namely that the Heads of Agreement is an absolute answer to Mr Kowalski’s claim. It sought to be and was excused from the obligation to file a defence or take other steps in the action pending the hearing and determination of its summary judgment application.
Judge Muecke heard the summary judgment application over five days between December 2015 and May 2016. AMP Superannuation tendered two affidavits by Craig Altorfer and one affidavit by David Smelt. Mr Altorfer was the Secretary of the Fund between at least 1997 and 2003. Mr Smelt was an employee of Mercer Human Resource Consulting Pty Ltd, administrator of the Fund, at least between 1998 and 2001. Neither Mr Altorfer nor Mr Smelt was involved in the Mediation or the negotiation, drafting or execution of the Heads of Agreement. No evidence was adduced by AMP Superannuation about the communications between the parties in and about the mediation or in relation to the negotiation, drafting or execution of the Heads of Agreement.
Mr Kowalski tendered 13 affidavits. He exhibited various documents, including the 26 October version and the 27 October version of the Heads of Agreement as well as the draft Heads of Agreement. He was not cross-examined.
It appears that Mr Kowalski argued before Judge Muecke that AMP Superannuation, not being a party to the Heads of Agreement, was not entitled to sue or rely upon it. Judge Muecke held that the Trustee of the Fund was the beneficiary of promises made by Mr Kowalski in the Heads of Agreement.[65] In Attorney-General for the State of South Australia v Kowalski[66] I had given permission to Mr Kowalski to institute the superannuation action and identified several issues that I considered would necessarily arise if the defendants sought to rely on the Heads of Agreement in answer to the claim (not including section 119 of the Act).[67] Judge Muecke in his reasons for judgment referred to these issues[68] but did not address them. The matters referred to in this paragraph are irrelevant to the new proceeding against Mitsubishi and can be put aside.
[65] At [214].
[66] [2015] SASC 123.
[67] At [193]-[199].
[68] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [33], [48], [163].
Mr Kowalski also argued before Judge Muecke that AMP Superannuation could not rely upon the Heads of Agreement in answer to his claim because some of its provisions were null and void by reason of section 119 of the Act. Mr Kowalski argued at least that the 27 October version was not binding on him under the non est factum doctrine and both versions contained provisions that were null and void by reason of section 119 of the Act.
Judge Muecke delivered reasons for judgment in May 2017. Judge Muecke granted summary judgment in favour of AMP Superannuation. Judge Muecke rejected Mr Kowalski’s contention that AMP Superannuation could not rely upon the Heads of Agreement in answer to his claim.
Mr Kowalski appealed to the Full Court against Judge Muecke’s judgment. The appeal has been heard and judgment reserved.
The issues on an application for permission to institute proceedings
Section 39 empowers the Court, if satisfied that a person has persistently instituted vexatious proceedings, to make an order prohibiting him or her instituting further proceedings without the prior permission of the Court.
Subsection 39(5) defines proceedings to be vexatious:
(a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b) if instituted without reasonable ground.
It follows that the criteria to be considered on an application for permission to institute a proposed proceeding is whether it would be instituted without reasonable ground (in positive terms, whether it is reasonably arguable) and whether it would be instituted for an ulterior purpose.
When considering whether a proposed proceeding is reasonably arguable, principal attention will normally be given to whether it is reasonably arguable that each element of the cause of action (or other claim) will be established in the proposed proceeding. However, it will sometimes also be necessary to consider whether the proposed defendant would have a defence to which the proposed plaintiff would not have a reasonably arguable answer. One such defence may be that the proceeding is precluded by res judicata, issue estoppel or abuse of process by relitigation. Whatever the defence may be, it is not necessary on an application for permission for the Court to be affirmatively satisfied that the defence will fail: this is the function of the court in which the proceeding is proposed to be instituted. Thus, if a defence of abuse of process by relitigation is likely to be raised by the proposed defendant, the question on the application for permission will be whether the proposed plaintiff has a reasonably arguable answer to the defence. This raises similar considerations to those on an application for summary dismissal of a claim based on a defence.
Mitsubishi cites from the judgment of Doyle CJ in Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[69] the following passages:
The issue for the Master was whether there were reasonable grounds on which the proposed proceedings could be instituted. There had to be a tenable or possible claim disclosed by the proposed proceedings. That question had to be considered bearing in mind the reason why the restraining order was made against Mr Kowalski...
In that context, the issue before the Master had two facets. First, it was necessary to look at the claim itself. On its face did it appear to be tenable as a matter of fact and law, or to have a possible chance of success? ….
The second facet of the issue before the Master required, having regard to the circumstances that gave rise to the order, that he consider whether there was reason to think that the proceedings, if instituted, would give rise to the re-agitation of matters already decided between Mr Kowalski and MMAL or the Trustee. That is, would the proceedings be vexatious? This aspect is significant. The purpose of the restraining order would be defeated if the Court confined its attention to the proposed proceedings, without considering their relationship to other proceedings that caused the Judge of this Court to make the restraining order.[70]
[69] [2006] SASC 159.
[70] At [24]-[26].
When those passages are considered in context, they are not authority for the proposition that permission to institute a proposed proceeding should only be given if the applicant affirmatively establishes that it would not be an abuse of process by relitigation. This is clear from the passages of the judgment which immediately follow those passages, namely:
It was neither necessary nor appropriate for the Master to embark on a preliminary trial of the action. Nor was it necessary to require Mr Kowalski to outline his whole case, or to explain how he would meet each difficulty of fact and law that might confront him. However, while it is not possible to state with precision how the line was to be drawn, it was necessary to consider both facets of the issue identified by me, and to consider matters of fact and law. Otherwise, as I have said, the order will provide little protection to MMAL. To put it simply, it was not appropriate to accept Mr Kowalski’s assertions of fact without enquiry, and it was necessary to consider to some extent at least the relationship between the claim that he wished to make and other claims he had made.
It is no answer to this to say that if the Statement of Claim was defective, the Trustee was entitled to attack it in the District Court. The purpose of requiring leave to proceed is to provide a preliminary screening to prevent unsustainable or vexatious claims, as a matter of fact or law, being instituted.[71]
[71] At [27]-[28] (Emphasis added).
Doyle CJ was not identifying the height of the threshold but rather its existence. Doyle CJ went on to conclude that the claim in that case was not adequately pleaded and it was unnecessary to consider the second aspect.
It is not clear whether Mitsubishi submits that permission to institute the new proceeding should only be given if Mr Kowalski affirmatively established that it would not be an abuse of process by relitigation. If so, I reject that contention. For the reasons given above, it is only necessary that Mr Kowalski establish that the proceeding is reasonably arguable, including that his answer to any defence raised by Mitsubishi is reasonably arguable.
The 27 October version
Mitsubishi contends that Judge Muecke decided that the 27 October version was binding on Mr Kowalski because he was aware of changes from the 26 October version. Mitsubishi contends that the abuse of process by relitigation principle precludes Mr Kowalski from relitigating that issue in the Tribunal as against Mitsubishi when it was decided adversely to him by Judge Muecke as against AMP Superannuation.
It should be emphasised at the outset that the only relevance in the new proceeding of the question whether Mr Kowalski knew and understood that Mitsubishi had omitted the words “(income maintenance and medical expenses)” or added the words “ex gratia” compared to the 26 October version is that the presence or absence of those words respectively potentially affects the question whether the Heads of Agreement contains provisions which offend section 119 of the Act. The mere fact that Mr Kowalski did not, due to Mitsubishi’s conduct, know and understand that Mitsubishi had made the changes in question (if it be the case) would not be an answer to the Heads of Agreement in itself because Mr Kowalski would still be bound by the 26 October version. The focus of this issue in the new proceeding will exclusively be upon the omission of the words “(income maintenance and medical expenses)” and the addition of the words “ex gratia” and not any other changes.
By contrast, the focus of Judge Muecke’s reasons in relation to Mr Kowalski’s understanding of the provisions of the 27 October version (and for that matter the 26 October version) was unsurprisingly on the question whether Mr Kowalski understood that the sum of $64,691.43 referred to therein to be paid from the Fund was to be paid in full and final settlement of any entitlement he may have to any type of superannuation benefit. That question is irrelevant to the issues that will be raised in the new proceeding. Conversely, the question whether Mr Kowalski understood that Mitsubishi had omitted the words “(income maintenance and medical expenses)” or added the words “ex gratia” had no direct relevance to the issues in the superannuation action.
It appears from Judge Muecke’s judgment that the argument advanced by Mr Kowalski before Judge Muecke was a different and more general argument, and was in any event in a very different context, to the specific argument that Mr Kowalski wishes to advance in the new proceeding (which relates only to the “(income maintenance and medical expenses)” omission and ex gratia addition). Judge Muecke characterised Mr Kowalski’s argument as a 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”.[72]
[72] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [177].
Judge Muecke found that Mr Kowalski understood that the sum of $64,691.43 referred to in the Heads of Agreement to be paid from the Fund was to be paid in full and final settlement of any entitlement he may have to any type of superannuation benefit. Judge Muecke said amongst other things on this topic:
I am satisfied and find that the plaintiff understood, when he read this document that night that it recorded his agreement 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, and included any superannuation payable by the MMAL Staff Superannuation Fund. I find that those words meant to the plaintiff precisely what they obviously said and mean.
Further, I am satisfied and find that the plaintiff was aware in the evening of 26 October 1998 that he had agreed to accept a sum which included a settlement for any superannuation entitlements he had, whether they be for total permanent disablement (TPD), or otherwise…
…
I am satisfied and find that this final version is the Heads of Agreement which has been the subject of litigation between the parties for years subsequent to 27 October 1998, and it is the Heads of Agreement the parties agreed to and executed on 27 October 1998, each understanding what they were agreeing to and agreeing to be bound by.
I am satisfied and find that the plaintiff then understood, in particular, that the $200,000 referred to included a sum to be paid from the Superannuation Fund, the sum was in settlement of all claims he had or may have in respect of superannuation, and that he had agreed, in consideration of such sum, not to institute any legal proceedings in respect of any superannuation which may be payable by the MMAL Staff Superannuation Fund.[73]
[73] At [95]-[96], [111]-[112].
Judge Muecke did not at any point in his judgment address whether Mr Kowalski knew or understood that the words “(income maintenance and medical expenses)” had been omitted from the 26 October version. Judge Muecke did address the question whether Mr Kowalski knew and understood that the words “ex gratia” had been added to the 26 October version. Judge Muecke said:
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.[74]
[74] At [173].
Judge Muecke did not identify the relevance of that change to the issues between Mr Kowalski and AMP Superannuation. There is nothing in Judge Muecke’s decision to indicate that this was considered to be relevant to the section 119 issue in relation to the Heads of Agreement and in particular Judge Muecke did not give any consideration to the question whether the 26 October version (as opposed to the 27 October version) contained provisions that offended section 119.
Judge Muecke made the finding extracted at [94] above in circumstances in which Mr Kowalski was not cross-examined and it was self-evidently not put to him in cross examination that his evidence about not being told of the addition of the words “ex gratia” was false. The finding was also made in circumstances in which no evidence was adduced from any other witness who was present at or party to the communications between the parties on 26 and 27 October 1998.
I form no view on whether the finding by Judge Muecke in the context of the superannuation action was erroneous due to the circumstances referred to in the previous paragraph. This may or may not be an issue that will be addressed by the Full Court on Mr Kowalski’s appeal. However, the fact that there was no cross-examination or contrary evidence adduced is highly relevant to the question whether it would be an abuse of process for Mr Kowalski to contend in the new proceeding that he was not aware of the addition of the words “ex gratia” in the 27 October version when he executed it.
The question on Mitsubishi’s application for permission to appeal is whether it is reasonably arguable that Mitsubishi can establish on appeal to the requisite standard (ie beyond reasonable argument) that it is an abuse of process by relitigation for him to contend in the new proceeding that he was not aware when he executed the 27 October version of the omission of the words “(income maintenance and medical expenses)” or the addition of the words “ex gratia”.
For the following reasons, this contention is not reasonably arguable by Mitsubishi. Even if (contrary to the position identified at [64] and [85] to [87] above) it had been necessary to find that it would not be an abuse of process by relitigation for Mr Kowalski to so contend in the new proceeding, I would have so found for the following reasons.
First Judge Muecke made no finding that Mr Kowalski knew and understood that Mitsubishi had omitted the words “(income maintenance and medical expenses)”.
Secondly, although Judge Muecke made a finding that Mr Kowalski knew and understood that Mitsubishi had added the words “ex gratia”, this was made in a very different action and in a very different context to the issue that will arise in the new proceeding. Judge Muecke did not identify that finding as being relevant to the section 119 issue insofar as it arose in the superannuation action (which itself, for the reasons given below, was very different to the section 119 issue that will arise in the new proceeding).
Thirdly Mr Kowalski’s evidence was not challenged in cross-examination or contradicted by any witness. Assuming that this does not impugn Judge Muecke’s finding in the context of the superannuation action, this is in itself good reason why Mr Kowalski should not be bound by the finding in the very different context of the new proceeding as against a different party.
Fourthly Mr Kowalski does not seek to litigate a new entire case (as has commonly been the case in actions which have been held to involve abuse of process by relitigation) but merely to raise non est factum as a subsidiary issue to an answer by him to a contention by Mitsubishi that he is precluded by the Heads of Agreement from bringing any workers compensation claims against Mitsubishi.
Fifthly this is not a case in which the purpose of the new proceeding is to mount a collateral attack on the decision in the superannuation action; in which it would manifestly unfair to Mitsubishi in the new proceeding that the issues decided in the superannuation action be relitigated; or in which permitting relitigation would bring the administration of justice into disrepute.
In conclusion, in the words of the High Court, this is not a case in which the continuance of the new proceeding “would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”.
The section 119 issue
Mitsubishi contends that Judge Muecke decided that the provisions of the Heads of Agreement are not non-binding on Mr Kowalski by reason of section 119 of the Act. Mitsubishi contends that the abuse of process by relitigation principle precludes Mr Kowalski from relitigating that issue in the new proceeding as against Mitsubishi when it was decided adversely to him by Judge Muecke as against AMP Superannuation.

Judge Muecke addressed the section 119 issue insofar as it arose in the superannuation action in a single paragraph. After quoting from the judgment of Deputy President McCouaig extracted at [19] above and from the judgment of Debelle J in Workers Rehabilitation & Compensation Corporation v JR Engineering Services Pty Ltd[75] that “The operation of this provision is confined to those parts of an agreement which purport to exclude, modify or restrict the operation of the Act. If any agreement contains a clause which falls within that description, the agreement is not wholly void but void only to the extent that it does not purport to exclude, modify or restrict the operation of the Act”, Judge Muecke said:
In my view Deputy President McCouaig and Debelle J were correct in what they said as to the operation of s 119 of the 1986 Workers Act. In my view the provision in the executed Heads of Agreement that the plaintiff be paid an ex gratia payment of about $125,000 did not, in its terms, attempt to exclude, modify or restrict the operation of the Act. Further, it is my view that that paragraph and all the other paragraphs in the Heads of Agreement were consistent with the focus of the Act “to reduce litigation and adversarial contests to the greatest possible extent”. Even if I had come to the conclusion that that paragraph offended s 119 of the 1986 Workers Act, that would not make the agreement “wholly void but void only to the extent that it does not purport to exclude, modify or restrict the operation of the Act”, as Debelle J said in the case cited above. The provisions of the executed Heads of Agreement that relate to superannuation and the plaintiff’s agreement not to institute any legal proceedings in respect of superannuation would not exclude, modify or restrict the operation of the 1986 Workers Act. They could, I conclude, be severed from the Heads of Agreement, and be binding on the plaintiff and his dependants.[76]
[75] (1995) 180 LSJS 276.
[76] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [201].
For the following reasons, it is not reasonably arguable by Mitsubishi that it can establish on appeal to the requisite standard (ie beyond reasonable argument) that it is an abuse of process by relitigation for Mr Kowalski to contend in the new proceeding that the provisions of the Heads of Agreement that purport to preclude his instituting legal proceedings against Mitsubishi for workers compensation are void as contravening section 119. Even if (contrary to the position identified at [64] and [85] to [87] above) it had been necessary to find that it would not be an abuse of process by relitigation for Mr Kowalski to so contend in the new proceeding, I would have so found for the following reasons.
First, assuming the premises that Mitsubishi entered into the Heads of Agreement as trustee for the Trustee of the Fund insofar as it addressed potential superannuation claims by Mr Kowalski, that by the terms of the Heads of Agreement Mr Kowalski made a promise in favour of the Trustee not to bring any future claims or proceedings for superannuation and that AMP Superannuation could rely on the terms of the Heads of Agreement by way of defence, the Heads of Agreement operates in a completely different manner vis a vis section 119 in relation to superannuation compared to workers compensation. Section 119 only applies to provisions that exclude, modify or restrict the operation of this Act in relation to workers compensation: it simply does not address superannuation entitlements. Section 119 is incapable of rendering void an agreement addressing or precluding superannuation entitlements. By contrast, section 119 is capable of rendering void an agreement addressing or precluding workers compensation entitlements.
Secondly Judge Muecke held in the passage extracted at [107] above that the provisions of the Heads of Agreement that relate to superannuation and Mr Kowalski’s agreement not to institute legal proceedings in respect of superannuation would not exclude, modify or restrict the operation of the Act, were independent of the provisions addressing workers compensation which were severable and the provisions relating to superannuation were therefore binding on Mr Kowalski. Given this conclusion, it was irrelevant to Judge Muecke’s decision whether the provisions of the Heads of Agreement addressing workers compensation offended section 119.
Thirdly Judge Muecke did not hold that clause 4.1 of the Heads of Agreement (extracted at [13] above) insofar as it precluded Mr Kowalski from instituting proceedings claiming workers compensation did not attempt to exclude, modify or restrict the operation of the Act. Rather Judge Muecke held that clause 2.2 providing “that the plaintiff be paid an ex gratia payment of about $125,000 did not, in its terms, attempt to exclude, modify or restrict the operation of the Act”. That observation is correct and is consistent with the tentative views I had expressed extracted at [28] above: there is nothing in section 119 that precludes an employer making an ex gratia payment to an employee.
Fourthly Judge Muecke observed that clause 2.2 and the other clauses in the Heads of Agreement were consistent with the focus of the Act “to reduce litigation and adversarial contests to the greatest possible extent”. This does not address the relationship between clause 4.1 and section 119. If notwithstanding that it was not necessary for his decision to do so, Judge Muecke had intended to conclusively decide the question whether section 119 barred the Heads of Agreement from precluding future workers compensation proceedings by Mr Kowalski against Mitsubishi (which was not a party to the superannuation action), it may be expected that Judge Muecke would have given substantive reasons for reaching that conclusion.
Fifthly Judge Muecke only addressed the 27 October version of the Heads of Agreement (which he called “the executed Heads of Agreement” in the passage extracted above). He did not on any view address the question whether the provisions of the 26 October version insofar as it precluded future workers compensation proceedings by Mr Kowalski against Mitsubishi contravened section 119. It is the 26 October version which will be relevant in the new proceeding if Mr Kowalski establishes that the 27 October version is rendered void by non est factum principles or should be rectified to match the 26 October version.
Sixthly Mr Kowalski does not seek to litigate a new entire case but merely to raise section 119 as an answer to a contention by Mitsubishi that he is precluded by the Heads of Agreement from bringing any workers compensation claims against Mitsubishi.
Seventhly this is not a case in which the purpose of the new proceeding is to mount a collateral attack on the decision in the superannuation action; in which it would manifestly unfair to Mitsubishi in the Employment Tribunal proceeding that the issues decided in the superannuation action be relitigated; or in which permitting relitigation would bring the administration of justice into disrepute.
Finally, given that on Judge Muecke’s conclusion referred to at [107] above the question whether section 119 barred the Heads of Agreement from precluding future workers compensation proceedings by Mr Kowalski against Mitsubishi did not arise because the provisions relating to superannuation were not on any view affected by section 119 and were severable, this is not a case in which the continuance of the Tribunal proceeding “would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”.
Conclusion
This ground of appeal is not reasonably arguable.
No basis to set aside decision
Ground 3 of the proposed notice of appeal is in the following terms:
The learned Judge erred in mixed law and fact in failing to find that:
3.1the intent of s 88H of the Worker’s Rehabilitation and Compensation Act 1986 (SA) is not to alter the substantive law of contract;
3.2unless and until the Heads of Agreement dated 27 October 1998 is set aside, any application to set aside orders of the South Australian Employment Tribunal that give effect to the compromise effected by the Heads of Agreement is untenable; and
3.3the South Australian Employment Tribunal has no jurisdiction which would empower it to set aside the Heads of Agreement dated 27 October 1998.
The contention advanced by Mitsubishi in submissions under this ground differs from the expression of the proposed ground of appeal. Mitsubishi’s contention as clarified during submissions is that, if Mr Kowalski is precluded by the abuse of process by relitigation principle from contending that due to Mitsubishi’s conduct he did not know or understand that Mitsubishi had made the changes in question in the 27 October version, there is no basis on which he could revisit before the Tribunal the issue of compliance of the Heads of Agreement with section 119 of the Act.
Mitsubishi’s contention is that section 88H of the Act cannot be used simply to revisit the merits of the decision sought to be set aside in the absence of something new or something more than merely revisiting the merits of the decision. I accept that contention as far as it goes. However, Mitsubishi’s contention is dependent on its establishing that Mr Kowalski is precluded by the abuse of process by relitigation principle from contending that, due to Mitsubishi’s conduct he did not know or understand that Mitsubishi had made the changes in question in the 27 October version. It has failed to establish this for the reasons given above. As Mitsubishi accepts, if Mr Kowalski is not so precluded in the new proceeding, this ground falls away.
Even if Mr Kowalski were so precluded, the circumstances identified at [33] to [36] above take this case out of a mere revisiting of the merits of previous decisions.
I observe for completeness that, as noted at [17] above, while the Full Bench of the Tribunal held that the Tribunal has no jurisdiction to set aside the Heads of Agreement, it does have jurisdiction to determine whether provisions of the Heads of Agreement precluding the institution of proceedings claiming workers compensation are invalid by reason of section 119 when that question is relevant to a matter that the Tribunal has jurisdiction to decide.
This ground of appeal is not reasonably arguable.
Application to set aside wrong orders
Ground 4 of the proposed notice of appeal is in the following terms:
The learned Judge erred in mixed law and fact in failing to find that the proposed action is inutile in that the setting aside of the relevant orders of the South Australian Employment Tribunal would not affect the consent order recorded on 3 November 1998 in action 4163 of 1998.
Mitsubishi contends that setting aside the 2001 order made by Deputy President McCouaig and the dismissal by the Full Bench of the appeal against that order would not affect the consent determination made by Conciliation Officer Richer. Mitsubishi contends that Mr Kowalski is attacking the wrong order and he should be seeking instead directly to set aside the determination by Conciliation Officer Richer.
Mitsubishi’s contention has no application to Mr Kowalski’s application to set aside Deputy President McCouaig’s 2003 order striking out Mr Kowalski’s application in respect of his 2003 claim for weekly payments. For the reasons given at [36] above, I regard this as the primary application in the new proceeding and the application in respect of the earlier orders as being ancillary to it and to avoid a multiplicity of actions.
I observe for completeness that, if Deputy President McCouaig’s 2001 order were set aside, this would leave extant Mr Kowalski’s application to set aside Conciliation Officer Richer’s consent order. The Tribunal would be obliged to hear and determine that application. There would be no need for Mr Kowalski to make a fresh application to set aside Conciliation Officer Richer’s consent order.
This ground of appeal is not reasonably arguable.
Substantial injustice
As observed above, on an application for permission to appeal against section 39 permission to institute proceedings, an applicant for such permission to appeal (assuming that an appeal is open) must ordinarily demonstrate two matters:
1. that the giving of permission is attended with sufficient doubt to warrant being reconsidered on appeal; and
2. that substantial injustice will be caused to the applicant if the permission stands.
I have concluded that the first limb has not been established. It is not necessary to consider the second limb. I observe that, if permission to appeal is not granted, Mitsubishi can advance before the Tribunal the same arguments sought to be advanced on appeal. The purpose of the making of a prohibition order under section 39 of the Supreme Court Act is so that the Court can perform a screening function in respect of the proposed institution by a vexatious litigant of further proceedings to ensure that further vexatious proceedings are not instituted. Given the nature of this screening function, it is doubtful that it is in the interests of justice that, other than in an exceptional case, when the Court has assessed that proposed proceedings pass this screening test, there be interposed an appeal on that issue rather than the issues simply being determined in the proposed proceeding. However, I do not decide the second limb in light of my conclusion on the first limb.
Revocation of permission
As observed above, Mitsubishi invites me to revoke the permission if I am satisfied that it ought not to have been granted. Mitsubishi does not make an application for revocation but invites me to act in a sense on my own initiative if I accept its contentions to the necessary degree of satisfaction.
It is unnecessary to consider revocation further because I have not accepted Mitsubishi’s contentions on the application for permission to appeal for the reasons given above.
Conclusion
Assuming that an appeal lies against the giving of permission and that Mitsubishi has standing to appeal, I refuse permission to appeal.