Attorney-General v Kowalski - [2014] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ATTORNEY-GENERAL v KOWALSKI
[2014] SASC 1
Judgment of The Honourable Justice Blue
20 January 2014
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE
The Attorney-General claims that Mr Kowalski has persistently instituted vexatious proceedings within the meaning of section 39 of the Supreme Court Act 1935 (SA) and seeks orders prohibiting him from instituting future proceedings without permission of the Court and staying existing proceedings.
Mr Kowalski was employed by Mitsubishi Motors from 1964 to 1994. He suffered several injuries, included to his eye in 1986, finger in 1988, back in 1989, dysthymia/depression around 1991, a heart attack in 1997 and wrist in 2003. He brought claims and appeals against Mitsubishi for workers compensation in respect of those injuries before review officers and in the Workers Compensation Appeals Tribunal and the Workers Compensation Tribunal. He brought claims in the District Court for breach of duty of care and statutory duty in respect of his eye and back injuries. He claimed an entitlement to a total and permanent disability benefit from the Mitsubishi Superannuation Fund.
In October 1998, Mr Kowalski and Mitsubishi entered into a commercial settlement of all claims for $200,000 under a Heads of Agreement. Extant claims by Mr Kowalski in the Workers Compensation Tribunal and before the review panel were dismissed by consent pursuant to that settlement. Subsequently, Mr Kowalski applied to set aside or appealed against the consent orders on the ground, inter alia, that parts of the Heads of Agreement were invalid pursuant to section 119 of the Workers Compensation and Rehabilitation Act 1986 (SA). He also brought fresh claims for compensation. These applications and fresh claims were ultimately dismissed by the Workers Compensation Appeals Tribunal and the Workers Compensation Tribunal.
Mr Kowalski retained Stanley & Partners in relation to his eye injury. This led to litigation between Mr Kowalski and Stanley & Partners concerning costs charged and monies paid for costs.
Mr Kowalski retained RJ Cole & Partners in relation to his back injury and in lieu of Stanley & Partners in relation to his eye injury. This led to litigation between Mr Kowalski and RJ Cole & Partners concerning their alleged negligent conduct of his back injury claim, costs charged and monies appropriated towards their costs.
Mr Kowalski retained Lieschke & Weatherill as solicitors and Mr Weatherill as counsel in an appeal by Mitsubishi to the Supreme Court against a decision of the Workers Compensation Appeal Tribunal. This led to litigation between Mr Kowalski and Lieschke & Weatherill concerning costs charged and monies appropriated towards costs.
Mr Kowalski undertook national service in the Australian Military in 1972/73. Ultimately he brought proceedings in the Administrative Appeals Tribunal against the Repatriation Commission and the Military Rehabilitation and Compensation Commission for mental and physical conditions which he claimed were caused by his military service. He also instituted proceedings in the Administrative Appeals Tribunal against Medicare Australia. Mr Kowalski was unsuccessful in those proceedings and his appeals to the Federal Court were dismissed.
Mr Kowalski laid in the Legal Practitioners Disciplinary Tribunal various charges against legal practitioners and advocates who acted or appeared for Mitsubishi, Mitsubishi Superannuation, RJ Cole & Partners, Stanley & Partners, Lieschke & Weatherill, the Repatriation Commission, the Military Rehabilitation and Compensation Commission and Medicare Australia.
The Attorney-General alleges that 109 claims brought by Mr Kowalski in the Workers Compensation Appeals Tribunal, Workers Compensation Tribunal, Legal Practitioners Disciplinary Tribunal, Industrial Court, Magistrates Court, District Court and Supreme Court were vexatious as having been brought without reasonable ground and in 65 cases for ulterior purposes. The Attorney-General contends that it is an abuse of process for Mr Kowalski to deny that proceedings found by Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 to be vexatious are vexatious. Mr Kowalski contends that several decisions of courts or tribunals relied upon by the Attorney-General as giving rise to res judicata or issue estoppel were made without jurisdiction or obtained by fraud and were null and void.
Mr Kowalski claims in a Counter Summons by way of cross action various declarations against the Attorney General. Mr Kowalski relies upon causes of action of inter alia collateral abuse of process, malicious prosecution, misfeasance in public office and breaches of ss 142, 243 and 256 of the Criminal Law Consolidation Act 1935 (SA). Mr Kowalski seeks permission to amend his cross action to rely upon additional causes of action of defamation, breach of statutory duties of care, confidence and privacy, denial of natural justice and perversion of the course of justice of and breach of section 120 of the Workers Rehabilitation and Compensation Act 1986 (SA). The Attorney-General applies to strike out Mr Kowalski’s Counter Summons on grounds including that it does not disclose a reasonable cause of action and is an abuse of process.
Held (as to the action):
1. The Workers Compensation Tribunal, Workers Compensation Appeal Tribunal and Industrial Relations Court were at all material times courts of a State and prescribed courts within the meaning of s 39 (at [900]-[901] and [904]). The Legal Practitioners Disciplinary Tribunal was not a court of a State or a prescribed court before 8 July 2007 (at [910]).
2. An application comprises a proceeding within the meaning of s 39 if it seeks final determination of a justiciable issue, is an appeal from a judgment or order or is an application to set aside a judgment or order substantively similar to an appeal. A purely interlocutory application relating to procedure incidental to an action as opposed to substantive rights is generally not a proceeding (at [924]).
3.      The institution of a proceeding encompasses the commencement of the proceeding as well as its prosecution. Proceedings are instituted once a party has done what is necessary to lodge them for determination whether they are to be accepted for filing (at [934]).
4.      It is not an abuse of process for Mr Kowalski to contest in this action that underlying matters were brought without reasonable ground because Bleby J found in an earlier action between Mitsubishi and Mr Kowalski that they were brought without reasonable ground (at[764]).
5. Of the 109 matters were proceedings instituted by Mr Kowalski within the meaning of s 39 (at [943]-[1042]).
6.      63 of the proceedings instituted by Mr Kowalski were instituted without reasonable ground (at [1090]-[1738]).
7.      11 of those 63 proceedings instituted by Mr Kowalski were instituted for an ulterior purpose (at [1745]-[1977]).
8.      Mr Kowalski persistently instituted vexatious proceedings (at [1985]).
9.      Mr Kowalski should be prohibited from instituting future proceedings without permission of the Court and existing proceedings other than those not found to be vexatious should be stayed (at [1992]).
Held (as to the applications to strike out and for permission to amend the Counter Summons):
1.      To the extent that the Counter Summons seeks declarations of Mr Kowalski’s rights vis a vis non-parties, it should be struck out (at [685]).
2.      To the extent that the Counter Summons seeks declarations concerning other actions or the Attorney-General’s conduct of this action, it should be struck out (at [690] and [695]).
3. The Counter Summons and the proposed Amended Counter Summons do not disclose a reasonable cause of action for collateral abuse of process, malicious prosecution, misfeasance in public office, contraventions of the Criminal Law Consolidation Act, defamation, breach of statutory duty of care, breach of statutory duty of confidence, breach of statutory duty of privacy, breach of natural justice and perversion of the course of justice or contravention of the Workers Rehabilitation and Compensation Act (at [698]-[740]).
4.      The Counter Summons was brought for the ulterior purpose to attack collaterally adverse decisions between Mr Kowalski and non-parties and is an abuse of process (at [749]).
5.      Permission to amend should be refused and the Counter Summons should be struck out (at [750]).
Acts Interpretation Act 1915 (SA) s 16; Australian Constitution ss 71, 74; Co-operatives National Law (South Australia) Act 2013 (SA) s 73(2); Criminal Law (Forensic Procedures) Act 1998 (SA) s 47(1)(c); Fair Work Act 1994 (SA) ss 8, 9, 11, 12, 13, 14, 15, 16 ; District Court Civil Rules 2006 (SA) rr 43, 53; Legal Practitioners Act 1981 (SA) ss 5, 78, 80, 82, 86; Limitation of Actions Act 1936 (SA) s 35; Magistrates Court Rules 1992 (SA) rr 26.05, 26.06; Military Rehabilitation and Compensation Act 2004 (Cth) ; Occupational Health, Safety and Welfare Act 1986 (SA); Statutes Amendment (Courts) Act 1995 (SA); Statutes Amendment (Courts) Act 2004 (SA); Supreme Court Act 1935 (SA) ss 5, 23, 39; Supreme Court Act Amendment Act 1987 (SA); Supreme Court Civil Rules 2006 (SA) rr 4, 28, 29, 30, 35, 53, 81, 90, 91, 96, 98, 99; Supreme Court of Judicature Act 1873 (UK) s 24; Supreme Court Regulations 2005 (SA) r 4; Supreme Court Variation Regulations 2007 (SA); Veterans’ Entitlements Act 1986 (Cth); Workers Compensation Act 1971 (SA) ss 9, 21, 27, 35, 39, 44, 45, 45a, 47, 51, 59, 69, 70, 72, 82; Workers Compensation Rules 1980 (SA); Workers Compensation Tribunal Rules 1996 (SA) rr 10, 23; Workers Compensation Tribunal Rules 2001 (SA) r 10; Workers Rehabilitation and Compensation Act 1986 (SA) ss 30, 32, 35, 36, 37, 38, 39, 42, 42A, 43, 46, 52, 53, 54, 60, 63, 77, 77-88I, 78, 79, 80, 86, 87A, 88I, 89A, 90, 90A, 91, 91A-92C, 92D, 94, 94A, 94C, 95, 96, 97, 97-97B, 100; Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (SA) s 17; Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1996 (SA) s 6; Workers Rehabilitation and Compensation (Miscellaneous) Act 1995 (SA); Workers Rehabilitation and Compensation (Miscellaneous Provisions) Act 1995 (SA), referred to.
Administration of Papua and New Guinea v Daera Guba Administration of Papua and New Guinea v Daera Guba (1973); Advertiser Newspaper v Despoja (1990) 159 LSJS 75; Arthur JS Hall & Co v Simons [2002] 1 AC 615; Blair v Curran (1939) 62 CLR 464; Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd’s Rep 132; Broken Hill Pty Co Ltd v Lorenz (1990) 53 SASR 244; Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516; City of Victor Harbor v Roeger [2002] SASC 218; (2002) 82 SASR 140; Commonwealth v Bank of New South Wales (1949) 79 CLR 497; Conroy’s Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC 76; (2007) 97 SASR 14; General Motors-Holden’s Limited v D’Andrea (1985) 122 LSJS 301; Harrington v Harrington (1979) 22 SASR 449; Henderson v Henderson (1843) 3 Hare 100 (67 ER 313); Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Kerekes v The State of South Australia [2003] SAWCT 83; Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; Lieberman v Morris (1944) 69 CLR 69; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; (2004) 236 LSJS 101; Moloney v Workers Compensation Tribunal (2010) 108 SASR 1; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Reichel v Magrath (1889) 14 App Cas 665; Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] Ch 1; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; Thoday v Thoday [1964] P 181; Walpole v Partridge & Wilson [1994] QB 106; Walton v Gardiner (1993) 177 CLR 378; Workers’ Rehabilitation and Compensation Corporation v Thuy Thi Vu Workers’ Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585, discussed.
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500; Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495; Ah Toy v Registrar of Companies (1985) 10 FCR 280; American Express Co v British Airways Board [1983) 1 WLR 701; Attorney-General v Wentworth (1988) 14 NSWLR 481; Attorney-General (WA) v Michael [1999] WASCA 181; Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497; Baines v State Bank of New South Wales (1985) 2 NSWLR 729; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364; Birkett v James [1978] AC 297; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809; BQ and HM Doe Pty Ltd v National Australia Bank [1999] SASC 124; Cameron v Cole (1944) 68 CLR 571; Campbell v Employers Mutual Ltd [2011] SASCFC 58; (2011) 110 SASR 57; Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853; Chapman v Chapman [1964] SASR 217; Commonwealth Bank of Australia v Cooke [1999] QSC 13; [2000] 1 Qd R 7; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; Connelly v DPP [1964] AC 1254; Connolly v Dale [1996] QB 120; Craig v Workers Compensation Tribunal [2004] SASC 410; (2004) 90 SASR 490; Deacon v Australian Capital Territory [2001] ACTSC 8; (2001) 147 ACTR 1; DMW v CGW (1982) 151 CLR 491; DSV Silo-und Verwaltungesellchaft mbH v Sennar [1985] 1 WLR 490; Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [1999] SASC 68; (1999) 73 SASR 303; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; Finch v Sayers [1976] 2 NSWLR 540; Grassby v The Queen (1989) 168 CLR 1; Gray v Police [2003] SASC 15; (2003) 85 SASR 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Hadkinson v Hadkinson [1952] P 285; Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380; Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565; Huddart, Parker & Co Pty Ltd & Appleton v Moorehead (1909) 8 CLR 330; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; In re Bell (1973) 60 LSJS 154; In re McCook (1887) 3 WN(NSW) 86; In re National Bank of Wales [1902] 2 Ch 412; In re Vernazza [1960] 1 QB 197; Issacs v The Ocean Accident and Guarantee Corporation Limited (1958) SR (NSW) 69; Jago v District Court (NSW) (1989) 168 CLR 23; James v Medical Board of South Australia [2006] SASC 267; Johnson v Gore Wood & Co [2002] 2 AC 1; Josephson v Walker (1914) 18 CLR 691; Keane v Salisbury City (1995) 87 LGERA 203; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531; Kok Hoong v Leong Cheong Kwong Mines Ltd [1964] AC 993; Law Society of South Australia v Murphy [1999] SASC 83; (1999) 201 LSJS 456; Legal Practitioners Conduct Board v Nicholson [2006] SASC 21; (2006) 243 LSJS 293; Lochgelly Iron and Coal Co v McMullan [1934] AC 1; McCann v Parsons (1954) 93 CLR 418; McNamara Business & Property Law v Kasmeridis [2005] SASC 269; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210; Moloney v Workers Compensation Tribunal [2010] SASCFC 17; Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456; New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173; News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563; Northern Territory v Mengel (1995) 185 CLR 307; Ousley v The Queen (1997) 192 CLR 69; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) [2003] HCA 25; (2003) 214 CLR 514; Philip Morris Ltd v Ainley [1975] VR 345; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Players Pty Ltd (in liquidation) (recievers appointed) v Clone Pty Ltd [2013] SASCFC 25; PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384; Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309; R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378; Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372; Richmond v Branson & Son [1914] 1 Ch 968; Robbins v Harbord (1994) 62 SASR 229; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Rogers v The Queen (1984) 181 CLR 251; Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185; Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489; Sanders v Sanders (1967) 116 CLR 366; Santos Ltd v American Home Assurance Co (1986) 127 LSJS 220; Shaw v Yarranova Pty Ltd [2011] VSCA 55; Shell Company of Australia Ltd v The Federal Commissioner of Taxation (1930) 44 CLR 530; Smith v Mt Barker Products Pty Ltd [2000] 77 SASR 157; Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285; Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77; Viro v The Queen (1978) 141 CLR 88; Visic v Proude [2013] SASCFC 62; (2013) 116 SASR 404; Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538; Wallingford v The Mutual Society (1880) 5 App Cas 685; Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; Williams v Spautz (1992) 174 CLR 509; Wunsch v South Australian Police (1995) 64 SASR 203; Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581; 4WD Systems Pty Ltd v McNamara [2009] SASC 166, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"court of the State", "court", "proceedings", "instituted", "without reasonable ground", "ulterior purpose", "decision", "persistently"

ATTORNEY-GENERAL v KOWALSKI
[2014] SASC 1
Civil
BLUE J.
Overview
History of the proceedings
Disqualification applications
Evidence
Terminology
Mr Kowalski’s opponents
Corporate and institutional entities
Principal law firms
Secondary law firms
Advocates
Decision makers
Overview of underlying matters
Mitsubishi
Eye injury
Finger injury
Back injury
Emotional distress and mental breakdown
Heart attack
The Heads of Agreement
Set aside applications and new claims

Mitsubishi Superannuation
Stanley & Partners
RJ Cole & Partners
Lieschke & Weatherill
Federal instrumentalities
Prohibition proceedings in the Federal Court
Advocates for primary opponents
Decision‑makers
B BACKGROUND LEGAL PRINCIPLES
The workers compensation regime
Entitlement to compensation
Incidence of liability
Primary compensation
Redemption
Independent causes of action
Dispute resolution jurisdiction
1971 Act
1986 Act to 2 June 1996
1986 Act from 3 June 1996
Transition
Costs
Rules

Settlement agreements
The legal practitioners disciplinary regime
Unprofessional and unsatisfactory conduct
The Disciplinary Tribunal
Tribunal rules
The binding nature of judicial decisions
Res judicata
Issue estoppel
Issue availability estoppel
Abuse of process
Jurisdiction
Judgments obtained by fraud
The doctrine of stare decisis

C BACKGROUND FACTS
January 1964 to July 1989
August 1989 to August 1991
September 1991 to July 1992
July to December 1992
January 1993 to March 1994
March 1994 to August 1995
September 1995 to June 1996
July 1996 to March 1998
April to October 1998
1998 Settlement
January 1999 to March 2002
April 2002 to March 2004
March 2004 to April 2005
May 2005 to December 2007
January 2008 to December 2010
January 2011 to August 2012
D MR KOWALSKI’S CROSS ACTION
The structure of the Counter Summons
Requirements for cross action
Declarations concerning rights vis a vis non‑parties
Paragraphs 11 and 24
Paragraphs 1 to 9
Paragraph 10
Paragraphs 12 to 14
Conclusion
Declarations concerning conduct of this action
Declarations concerning other actions
Causes of action
Collateral abuse of process
Malicious prosecution
Misfeasance in public office
Breaches of Criminal Law Consolidation Act
Conclusion
Conclusion on strike out application
Application for permission to amend
Defamation
Breach of statutory duty of care
Breach of statutory duty of confidence
Breach of statutory duty of privacy
Breach of natural justice
Breach of section 120 of the 1986 Act
Conclusion
Abuse of process
Conclusion
E OVERARCHING ISSUES
Attorney-General’s abuse of process contention
Plaintiff in first or second matter
Defendant in both matters
Analysis
Jurisdiction of this Court
Jurisdiction to make prohibition and stay orders
Proceedings against wrongdoers
Sub judice
Standing, role and conduct of the Attorney‑General
Standing
Role
Conduct
Jurisdiction in underlying matters
The Workers Compensation Tribunal and Appeal Tribunal
Actions after 16 March 1994
Action 4163 of 1998
Action 10W of 2000
Action 8059 of 2000
Action 132 of 2002
Actions 2228 of 2001 and 5879 of 2001
Actions 3050 of 2003 and 5956 of 2003

Supreme Court
Action 892 of 1996
Action 468 of 2006
Action 468 of 2006

District Court
Action 2760 of 1990
Action 957 of 1996

Magistrates Court
Action 778 of 2006
Action 216 of 2012
Information against Mr Weatherill
Action 9855 of 2011

Disciplinary Tribunal
Action 7 of 2007

Judgments obtained by fraud
Federal decisions
F PRESCRIBED COURT
Contested issues
Court of the State
Workers Compensation Tribunal & Appeal Tribunal
Industrial Relations Court
Legal Practitioners Disciplinary Tribunal
G INSTITUTED PROCEEDINGS
Proceedings
Instituted proceedings
Underlying court held no jurisdiction
Leave or extension of time to appeal not granted
Matters not proceeding to trial
Mitsubishi matters
Workers Compensation Tribunal and Appeal Tribunal
Notices of dispute
Applications for expedited decision
Notices of Appeal
Applications to set aside orders
Application for a stay
Application to disqualify

Supreme Court
Summonses for judicial review
Appeals and applications for leave or extension of time to appeal
Applications to set aside orders
Application for a stay
Applications for leave to institute under section 39

District Court
Interlocutory application for costs
Appeals
Application to set aside judgment or order
Application for non-party discovery
Application to rescind examination summons

RJ Cole & Partners matters
District Court
Appeals
Application for review
Applications to set aside judgment
Application to disqualify

Disciplinary Tribunal
Charges

Industrial Relations Court
Summons
Notice of appeal

Magistrates Court
Informations

Supreme Court
Appeals
Application for refund of costs
Application to set aside striking out order

Stanley & Partners matters
Disciplinary Tribunal
Charges

Industrial Relations Court
Summons
Appeal

Magistrates Court
Information

Supreme Court
Appeals
Applications for leave to appeal

Lieschke & Weatherill matters
Disciplinary Tribunal
Charges

Magistrates Court
Information

Advocates and decision maker matters
Disciplinary Tribunal
Prescribed court
Proceedings instituted

Supreme Court
Appeal

H    VEXATIOUS: WITHOUT REASONABLE GROUND
Without reasonable ground
I      MITSUBISHI MATTERS: HEADS OF AGREEMENT
The relevant underlying proceedings
Consent dismissals of extant applications
Applications to set aside consent dismissals
New applications by Mr Kowalski
Decisions by the Tribunal concerning the Heads of Agreement
Types of compromise agreement
Analysis
Applications to set aside (M3, M5 and M7)
Notice of appeal August 2001 (M14)
Notice of dispute 29 December 2000 (M6)
Notice of appeal 17 April 2001 (M10)
Notice of dispute 16 August 2001 (M13)
J      MITSUBISHI MATTERS GENERALLY
Workers Compensation Tribunal
Notice of dispute 19 November 1996 (M2)
Cross-appeal 24 February 2000 (M4)
Notice of dispute 30 March 2001 (M9)
Application for stay 17 April 2001 (M11)
Application for expedited decision 10 January 2002 (M15)
Notice of dispute 23 August 2002 (M16)
Notice of appeal February 2003 (M21)
Application for expedited decision 10 March 2003 (M22)
Application for expedited decision 14 May 2003 (M24)
Notice of dispute 2 September 2003 (M25)
Notice of appeal 25 March 2004 (M29)
Notice of dispute 31 December 2003 (M28)
Notice of appeal May 2004 (M30)
Application to disqualify 8 June 2004 (M31)
Supreme Court
Notice of appeal 9 July 2004 (M32)
Summons for judicial review 16 September 2005 (M33)
Notice of appeal 22 December 2005 (M34)
Application for leave to institute 22 March 2006 (M35)
Summons for leave to institute 19 April 2006 (M36)
Notice for directions for leave under s 39 1 May 2006 (M37)
Notice for directions for stay 23 May 2006 (M38)
Notice for directions for leave to appeal 15 June 2006 (M39)
Notice for directions for extension of time to appeal 5 February 2007 (M41)
Notice for directions to set aside 5 April 2012 (M42)
District Court
Application to set aside judgment 18 November 1996 (M1)
Application for discovery 15 March 2001 (M8)
Notice of appeal 9 July 2001 (M12)
Interlocutory summons to set aside 22 October 2002 (M17)
Notice of appeal 5 November 2002 (M18)
Application to set aside 22 January 2003 (M19)
Notice of appeal 4 February 2003 (M20)
Notice of appeal 7 May 2003 (M23)
Application to set aside 22 September 2003 (M26)
Notice of appeal 4 December 2003 (M27)
Interlocutory summons for costs 12 December 2006 (M40)
K    RJ COLE & PARTNERS MATTERS
District Court action 957 of 1996
Application to disqualify 16 September 2003 (R1)
Notice of appeal 22 September 2003 (R2)
Notice of appeal 1 November 2003 (R3)
Application for review 10 October 2006 (R6)
Interlocutory summons to set aside 20 November 2006 (R7)
Application to set aside 27 May 2008 (R12)
Notice of appeal 5 September 2008 (R13)
Supreme Court action 1563 of 1996
Notice for directions for refund 24 July 2007 (R8)
Notice for directions to set aside 25 January 2008 (R11)
Disciplinary Tribunal
Charge 3 May 2005 (R4)
Charge 25 July 2005 (R5)
Charge 15 October 2007 (R9)
Charge 15 November 2007 (R10)
Industrial Relations Court
Summons 25 March 2011 (R14)
Jurisdiction
Limitation Act
Abuse of process
Merits of the claim
Conclusion

Notice of appeal 25 August 2011 (R15)
Magistrates Court and Supreme Court on appeal
Information 23 September 2011 (R16)
Notice of appeal 3 January 2012 (R17)
Information 3 January 2012 (R18)
Notice of appeal 13 April 2012 (R19)
L STANLEY & PARTNERS MATTERS
Disciplinary Tribunal
Charge 10 December 1997 (S1)
Charge 10 May 2010 (S2)
Charge 4 April 2012 (S10)
Industrial Relations Court
Summons 7 March 2011 (S3)
Jurisdiction and Limitation Act
Abuse of process
Merits of the claim

Notice of appeal 25 August 2011 (S4)
Magistrates Court
Information 30 August 2011 (S5)
Supreme Court
Notice of appeal (S6)
Application for leave to appeal 3 February 2012 (S7)
Notice for directions 1 March 2012 (S8)
Notice of appeal 13 March 2012 (S9)
M LIESCHKE & WEATHERILL MATTERS
Disciplinary Tribunal
Charge 3 August 2007 (L1)
Charge 16 April 2010 (L2)
Magistrates Court
Information 28 September 2011 (L3)
N ADVOCATES MATTERS
Mitsubishi advocates
Disciplinary Tribunal
Charges against Ms Layton QC and Mr Fountain 19 April 2004 (A1 and A2)
Charge against Ms Layton QC 19 November 2004 (A5)
Charge against Mr Fountain 22 November 2004 (A6)
Charge against Ms Layton QC 28 February 2005 (A7)
Charge against Mr Soulio 10 October 2005 (A10)
Charge against Mr Fountain 23 September 2007 (A14)
Charge against Mr Doyle 2 March 2011 (A32)

Supreme Court
Notice of appeal 22 December 2005 (A11)
Notice of appeal 15 May 2006 (A12)

Mitsubishi Superannuation advocates
Disciplinary Tribunal
Charge against Ms Christie 20 August 2004 (A3)
Charge against Mr White 18 October 2004 (A4)
Charge against Mr Voss 19 September 2005 (A9)
Charge against Ms Halkett 9 November 2007 (A15)
Charge against Mr Voss and Mr White 3 July 2008 (A19)
Charge against Ms Heath 16 June 2010 (A31)

RJ Cole & Partners advocates
Disciplinary Tribunal
Charge against Mr Forrest 20 June 2005 (A8)
Charge against Ms Schammer 21 July 2008 (A20)
Charge against Mr Coppola 8 February 2012 (A34)

Stanley & Partners advocates
Disciplinary Tribunal
Charge against Mr Camatta 5 May 2010 (A30)
Charge against Ms Nelson QC 3 March 2011 (A33)

Lieshcke & Weatherill advocates
Disciplinary Tribunal
Charge against Mr Warren 4 February 2010 (A26)
Charge against Mr Stanley QC 16 April 2010 (A28)

Federal instrumentality advocates
Disciplinary Tribunal
Charge against Mr Dwyer 28 February 2008 (A16)
Charge against Mr Wallace 23 June 2008 (A18)
Charge against Mr Topperwein 15 August 2008 (A21)
Charge against Mr Camilos 23 January 2009 (A23)
Charge against Mr Wallace 5 May 2009 (A24)
Charge against Mr Schatz 21 January 2010 (A25)
Charge against Ms Vuksan 24 February 2010 (A27)

Glenelg Pizza House advocate
Disciplinary Tribunal
Charge against Mr Hanus 8 August 2007 (A13)

O DECISION MAKERS MATTERS
Disciplinary Tribunal
Charge against Ms Carabelas 14 May 2008 (A17)
Charge against Mr Morcombe QC 7 November 2008 (A22)
Charge against Mr Clarke 20 April 2010 (A29)
Charge against Mr Roder 29 May 2012 (A35)

P VEXATIOUS: ULTERIOR PURPOSE
Mitsubishi matters
District Court matters
Application 18 November 1996 (M1)
Application for further discovery 15 March 2001 (M8)
Application to set aside examination summons 22 October 2002 (M17)

Workers Compensation Tribunal matters
Notice of dispute 19 November 1996 (M2)
Notice of dispute 20 December 2000 (M6)
Application for expedited decision 10 March 2003 (M22)
Application for expedited decision 14 May 2003 (M24)

Supreme Court
Summons for judicial review 16 September 2005 (M33)
Summons 19 April 2006 (M36)

RJ Cole & Partners matters
Disciplinary Tribunal
Charge 15 October 2007 (R9)
Charge 15 November 2007 (R10)

Industrial Relations Court
Summons 25 March 2011 (R14)
Notice of appeal 25 August 2011 (R15)

Magistrates Court
Information 2 September 2011 (R16)
Notice of appeal 3 January 2012 (R17)
Information 3 January 2012 (R18)
Notice of appeal 13 April 12 (R19)

Stanley & Partners matters
Disciplinary Tribunal
Charge 10 December 1997 (S1)
Charge 10 May 2010 (S2)
Charge 4 April 2012 (S10)

Industrial Relations Court
Summons 7 March 2011 (S3)
Notice of appeal 25 August 2011 (S4)

Magistrates Court information and appeals
Information 30 August 2011 (S5)
Appeal 14 November 2011 (S6)
Appeal 3 February 2012 (S7)

Supreme Court
Application for extension of time to appeal 1 March 2012 (S8)
Notice of appeal 13 March 2012 (S9)

Lieschke & Weatherill matters
Disciplinary Tribunal
Charge 3 August 2007 (L1)
Charge 16 April 2010 (L2)

Magistrates Court
Information 28 September 2011 (L3)

Advocates matters
Mitsubishi advocates
Charge against Ms Layton QC 19 April 2004 (A1)
Charge against Mr Fountain 19 April 2004 (A2)
Charge against Ms Layton QC 19 November 2004 (A5)
Charge against Mr Fountain 22 November 2004 (A6)
Charge against Ms Layton QC 28 February 2005 (A7)
Notice of appeal 22 December 2005 (A11)
Notice of appeal 15 May 2006 (A12)
Charge against Mr Soulio 10 October 2005 (A10)
Charge against Mr Fountain 23 September 2007 (A14)
Charge against Mr Doyle 2 March 2011 (A32)

Mitsubishi Superannuation advocates
Charge against Ms Christie 20 August 2004 (A3)
Charge against Mr White 18 October 2004 (A4)
Charge against Mr Voss 19 September 2005 (A9)
Charge against Ms Halkett 9 November 2007 (A15)
Charge against Mr Voss and Mr White 3 July 2008 (A19)
Charge against Ms Heath 16 June 2010 (A31)

RJ Cole & Partners advocates
Charge against Mr Forrest 20 June 2005 (A8)
Charge against Ms Schammer 21 July 2008 (A20)
Charge against Mr Coppola 8 February 2012 (A34)

Stanley & Partners advocates
Charge against Mr Camatta 5 May 2010 (A30)
Charge against Ms Nelson QC 3 March 2011 (A33)

Lieschke & Weatherill advocates
Disciplinary Tribunal
Charge against Mr Warren 4 February 2010 (A26)
Charge against Mr Stanley QC 16 April 2010 (A28)

Federal instrumentality advocates
Charge against Mr Dwyer 28 February 2008 (A16)
Charge against Mr Wallace 23 June 2008 (A18)
Charge against Mr Wallace 5 May 2009 (A24)
Charge against Topperwein 15 August 2008 (A21)
Charge against Mr Camilos 23 January 2009 (A23)
Charge against Mr Schatz 21 January 2010 (A25)
Charge against Ms Vuksan 24 February 2010 (A27)

Glenelg Pizza House advocate
Charge against Mr Hanus 8 August 07 (A13)

Decision‑makers
Charge against Ms Carabelas 14 May 2008 (A17)
Charge against Mr Morcombe QC 7 November 2008 (A22)
Charge against Mr Clarke 20 April 2010 (A29)
Charge against Mr Roder 29 May 2012 (A35)

Q    PERSISTENTLY INSTITUTES PROCEEDINGS
R    DISCRETION
S     CONCLUSION
ANNEXURE
A.    INTRODUCTION
Overview

The Attorney-General seeks a declaration that Mr Kowalski has persistently instituted vexatious proceedings within the meaning of section 39 of the Supreme Court Act 1935 (SA) (“the Act”). He seeks orders prohibiting Mr Kowalski from instituting future proceedings without permission of the Court[1] and staying existing proceedings.[2]
[1] Supreme Court Act 1935 (SA) s 39(1)(a).
[2] Supreme Court Act 1935 (SA) s 39(1)(b).
The Attorney-General contends that between November 1996 and May 2012 Mr Kowalski brought[3] 109 applications[4] in seven forums[5] (“underlying matters”) which comprise proceedings instituted in a prescribed court and are vexatious within the meaning of section 39 of the Act.
[3] I use the neutral term “brought” because it is in dispute whether some of the matters have been “instituted” within the meaning of s 39.
[4] I use the neutral term “applications” or “matters” because it is in dispute whether some of the matters comprise “proceedings” within the meaning of s 39.
[5] I use the neutral term “forum” because it is in dispute whether some of the matters were brought in a “court of the State” or “prescribed court” within the meaning of s 39.
The Attorney-General contends that all 109 applications are vexatious because they were instituted without reasonable ground[6] and 65 applications are also vexatious because they were instituted for ulterior purposes.[7]
[6] Supreme Court Act 1935 (SA) s 39(5)(b).
[7] Supreme Court Act 1935 (SA) s 39(5)(a).
Mr Kowalski denies that any applications are vexatious. He denies that some of them were brought in a “prescribed court”, some of them comprise “proceedings” and some of them were “instituted” within the meaning of section 39 of the Act.
The Attorney-General contends, and Mr Kowalski denies, that Mr Kowalski persistently instituted vexatious proceedings within the meaning of section 39 of the Act.
Mr Kowalski brought a cross action by way of Counter Summons against the Attorney-General. The Attorney-General applied to strike it out. I heard submissions on the strike out application during the trial of the Attorney‑General’s action and reserved my decision on that application to be addressed as part of these reasons for judgment. I also reserved my decision on an application for permission to amend the Counter Summons made by Mr Kowalski.
The principal issues in the Attorney-General’s action against Mr Kowalski are:
1.Were the Workers Compensation Tribunal, Workers Compensation Appeal Tribunal, Industrial Relations Court and Legal Practitioners Disciplinary Tribunal courts of a State or prescribed courts at material times?
2.Were the underlying matters proceedings?
3.Did Mr Kowalski institute proceedings?
4.Were the underlying matters vexatious as being instituted without reasonable ground?
5.Is it an abuse of process for Mr Kowalski to deny that the proceedings found by Bleby J to have been instituted without reasonable ground were so instituted?
6.Did certain decisions of courts or tribunals not give rise to res judicata or issue estoppel because they were made without jurisdiction or obtained by fraud?
7.Were certain underlying matters vexatious as being instituted for ulterior purposes?
8.Did Mr Kowalski persistently institute vexatious proceedings?
9.Should Mr Kowalski be prohibited from instituting future proceedings without permission of the Court?
10.Should existing proceedings instituted by Mr Kowalski be stayed?
The principal issues on the Attorney-General’s strike out application and Mr Kowalski’s amendment application in respect of the Counter Summons are:
1.Is Mr Kowalski entitled to seek declarations of his rights vis a vis non‑parties in the absence of those persons being joined as parties to the action?
2.Is Mr Kowalski entitled to seek declarations concerning the obligation of the Attorney‑General to intervene in underlying matters between Mr Kowalski and non‑parties or to declarations concerning the Attorney‑General’s conduct of this action?
3.Does the Counter Summons disclose a reasonable cause of action against the Attorney-General for collateral abuse of process, malicious prosecution, misfeasance in public office or breach of sections 142, 243 or 256 of the Criminal Law Consolidation Act 1935 (SA)?
4.Should Mr Kowalski be permitted to amend his Counter Summons and does the proposed amended Counter Summons disclose a reasonable cause of action against the Attorney-General for defamation, breach of statutory duty of care, breach of statutory duty of confidence, breach of statutory duty of privacy, breach of natural justice and perversion of the course of justice or breach of section 120 of the Workers Rehabilitation and Compensation Act 1986 (SA)?
5.Is the cross action an abuse of process as having been brought to attack collaterally adverse decisions as between Mr Kowalski and non‑parties?
History of the proceedings
On 11 April 2011, the Attorney‑General instituted this action by summons. The Summons was supported by an affidavit sworn by Lisette Knobel on 6 April 2011. The Attorney‑General elected at that point to proceed upon affidavit rather than pleadings. Ms Knobel’s affidavit performed the function of a statement of plaintiff’s claim under rules 91(1) and 96(1) of the Supreme Court Civil Rules 2006 (SA) (“the 2006 Supreme Court Rules”).
On 1 May 2011, Mr Kowalski wrote to the Attorney‑General seeking further and better particulars of the Summons. In due course, he brought interlocutory applications seeking orders for further and better particulars of the Summons. On 15 December 2011, I ordered that the Attorney‑General provide some of the particulars sought by Mr Kowalski.
On 22 December 2011 the Attorney‑General filed a Second Summons incorporating a Schedule of Particulars. In the Schedule of Particulars, the Attorney‑General set out each underlying matter which he alleged was vexatious, whether he alleged that it was vexatious under paragraph (a) and/or paragraph (b) of subsection 39(5) and the ground(s) upon which he alleged that it was vexatious. The Schedule of Particulars superseded Ms Knobel’s affidavit as the statement of plaintiff’s claim under rule 91(1) of the 2006 Supreme Court Rules.
Both parties proceeded thereafter on the basis that the Schedule of Particulars functioned as the statement of plaintiff’s case. Mr Kowalski made several applications for further and better particulars of the allegations contained in the Schedule of Particulars. On two of the applications,[8] I ordered that the Attorney‑General provide some of the further and better particulars sought by Mr Kowalski. On 14 November 2012, the Attorney‑General filed a further version of the Schedule of Particulars to the Third Summons. The trial proceeded on this version of the Schedule of Particulars.
[8] An application dated 14 March 2012 (FDN 52) and an oral application made on 24 September 2012.

On 22 August 2012, Mr Kowalski filed a Response to the Schedule of Particulars in the form of an exhibit to an affidavit.[9] In his Response, Mr Kowalski added an additional column to the Schedule of Particulars entitled “Defendant’s Response” in which he set out his response in relation to each underlying matter. He did this, in general terms, by cross‑reference to three documents which he had filed in late July 2012 entitled “Respondent’s (Further) Reply to the Attorney‑General’s Second and Third Summons”.[10] On occasion, he also made cross‑reference to other documents (affidavits or submissions) which he had filed in the action. Mr Kowalski’s Response functioned as his defence to the Attorney‑General’s claim.
[9] FDN 112.
[10] Respondent’s Reply to A‑G’s Second and Third Summons dated 23 July 2012, Respondent’s Further Reply to the A-G’s Second and Third Summons dated 29 July 2012 and Respondent’s Further Reply to the A‑G’s Second and Third Summons dated 30 July 2012.
The issues on the Attorney‑General’s claim were defined for the purpose of trial by the Third Summons and attached Schedule of Particulars and by Mr Kowalski’s Response and documents to which it referred.
On 19 July 2012, Mr Kowalski filed a document entitled “Defendant’s Amended Counter Summons to the Plaintiff’s Second and Third Summons”.[11]
[11] FDN 89.
On 30 July 2012, the Attorney‑General filed an interlocutory application to strike out the Counter Summons. I directed that the strike out application be heard during the trial of the Attorney-General’s action. On 4 January 2013, Mr Kowalski filed an interlocutory application seeking permission to amend the Counter Summons.[12] I address the strike out and permission to amend applications and Mr Kowalski’s cross action in Part D below.
[12] FDN 158.
Disqualification applications
Before the commencement of the trial, Mr Kowalski made several applications that I disqualify myself on the ground of reasonable apprehension of bias. During the trial in December 2012, Mr Kowalski made further applications that I disqualify myself. After the conclusion of the trial in December 2012, Mr Kowalski made further applications that I disqualify myself.
On each occasion, I ruled that a fair minded lay observer would not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide and declined to disqualify myself. On each occasion, I gave ex tempore reasons for my ruling.
Evidence
During the trial, the Attorney-General tendered 22 lever arch folders of documents. These in the main comprised records of and documents relating to underlying matters brought by and against Mr Kowalski between 1989 and 2012. Mr Kowalski did not object to the admission of these documents. I received them as exhibits.
During the trial, Mr Kowalski tendered 65 affidavits sworn by him in the action and 44 standalone documents or bundles of documents. The exhibits to his affidavits and the standalone documents in the main comprised records of and documents relating to underlying matters brought by and against him between 1989 and 2012. The Attorney-General did not concede the relevance of all of the documents, but did not object to their admission. I received the affidavits, exhibits and standalone documents as exhibits. Mr Kowalski also tendered a notice to admit facts and documents[13] to which the Attorney‑General had not responded. I admitted the notice to admit facts excluding paragraphs 1 to 6 and 8 and I admitted the notice to admit documents and the attached documents.
[13] Exhibit D8.
In January 2013, I admitted without opposition by the Attorney-General paragraphs 4.1, 4.3 to 4.8 and 9 of Mr Kowalski’s affidavit sworn on 27 December 2012 together with exhibits 2 to 9 to the affidavit.
In June and July 2013, Mr Kowalski tendered 22 affidavits and exhibits sworn by him after the conclusion of the trial and six standalone documents or bundles of documents. The Attorney‑General objected to the admission of the documents on the grounds that it was too late and that the affidavits were generally irrelevant and repetitive. I ruled that I would receive the exhibits to the affidavits but not exhibits being documents created after 18 December 2012. I ruled that I would receive the affidavits themselves limited to the purpose of explaining the exhibits and otherwise I would treat them as submissions by Mr Kowalski. I received the standalone documents as exhibits.
Mr Kowalski called Rosalind Burke. Ms Burke gave evidence concerning communications between the Professional Standards section of the Law Society and Mr Kowalski and RJ Cole & Partners. She also gave evidence concerning procedures required to be undertaken by solicitors, including procedures relating to the operation of trust accounts. I found Ms Burke to be an honest and reliable witness and have no reason not to accept any of her evidence. My decision does not turn on her evidence.
Terminology
Different courts and tribunals use different terminologies to denote proceedings. They use different numbering systems to denote individual proceedings. For ease of reference, I describe every proceeding in every court or tribunal as an “action” and identify it by number as “action [number] of [year]”.
Several legal practitioners involved in litigation with Mr Kowalski were later appointed to office. They are the Honourable Justice Stanley of this Court, who was then Mr Stanley QC, His Honour Judge Soulio, who was Mr Soulio practising as a barrister, the Honourable Robyn Layton QC, who later became the Honourable Justice Layton of this Court and the Honourable Jay Weatherill MP, Premier, who was then Mr Weatherill practising as a barrister and solicitor. Mr Forrest and Ms Schammer were subsequently appointed Magistrates. I describe each of them according to the title which they held at the time of the events which are material to these proceedings.
Mr Kowalski’s opponents
Corporate and institutional entities
Mitsubishi Motors Australia Limited (“Mitsubishi”) was a motor vehicle manufacturer. Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (“Mitsubishi Superannuation”) was the trustee of the Mitsubishi Motors Australia Staff Superannuation Fund (“the Mitsubishi Superannuation Fund”) whose members were Mitsubishi employees.
In June 2006, Mitsubishi entered into an agreement with AMP Superannuation Ltd (“AMP Superannuation”) to create an employer‑sponsored superannuation sub‑fund within its AMP Superannuation Savings Trust (“the AMP Superannuation Fund”). In June 2006, AMP Superannuation and Mitsubishi Superannuation executed a deed providing for the benefit entitlements of members of the Mitsubishi Superannuation Fund to be rolled over from the Mitsubishi Superannuation Fund into the AMP Superannuation Fund. Mitsubishi Superannuation transferred to AMP Superannuation assets of the Mitsubishi Superannuation Fund corresponding with the entitlements of transferring members.
The Workers Rehabilitation and Compensation Corporation, later called WorkCover Corporation of South Australia, (“WorkCover”) was a body corporate performing functions under the Workers Rehabilitation and Compensation Act 1986 (SA).
The Department of Veterans’ Affairs was the department of the federal government with responsibility for the administration of the Veterans’ Entitlements Act 1986 (Cth). Bruce Topperwein was employed by the Department as Director, Litigation, Legal Services Group, Business Integrity Division. The Veterans’ Review Board and the Repatriation Commission were bodies corporate performing functions under the Veterans’ Entitlements Act 1986 (Cth).
The Military Rehabilitation and Compensation Commission (“the Military Compensation Commission”) was a body corporate performing functions under the Military Rehabilitation and Compensation Act 2004 (Cth).
Principal law firms
Stanley & Partners was a law firm. At material times in the 1980s and 1990s, Tim Bourne was a partner.
Cole Harris Pty Ltd, later called RJ Cole & Partners Pty Ltd, was an incorporated law practice practising under the name RJ Cole & Partners. At material times, Russell Cole, Phillip Harris and Andrew Sim were the directors and shareholders of the company and the principals of the practice. At material times between 1990 and 1992, Stephen Dowd was an employee.
Lieschke & Weatherill was a law firm. At material times in 1995 and 1996, Jay Weatherill was a partner. In 2007, Steven Dolphin was the sole proprietor of the firm.
Secondary law firms
Fountain & Bönig was a law firm. John Fountain and Ralph Bönig were partners. Fountain & Bönig acted for Mitsubishi in disputes with Mr Kowalski.
Thomson Playford, later called Thomson Playford Cutlers and Thomsons, was a law firm. Steven Voss and John White were partners. Emma Christie and Rebecca Halkett were employees. Thompson Playford acted for Mitsubishi Superannuation and in the Federal Court for Mitsubishi in disputes with Mr Kowalski.
Rowell Forrest & Co was a law firm. Terry Forrest was a partner. Rowell Forrest & Co acted for RJ Cole & Partners as defendant to a professional negligence action brought by Mr Kowalski. Minter Ellison was a law firm. Jane Schammer was an employee. Minter Ellison acted for RJ Cole & Partners in disputes with Mr Kowalski in relation to the recovery of costs associated with Mr Kowalski’s professional negligence action.
Camatta Lempens was a law firm. Franco Camatta was a partner. Camatta Lempens acted for Mr Bourne in disputes with Mr Kowalski.
Sparke Helmore was a law firm. Michael Dwyer and John Wallace were partners. Mr Dwyer and Mr Wallace acted for the Military Compensation Commission in disputes with Mr Kowalski.
The Australian Government Solicitor acted as solicitor for the federal government and federal instrumentalities. Greg Camilos, Andrew Schatz and Vesna Vuksan were employees. They acted for the Repatriation Commission and Mr Schatz acted for Medicare Australia in disputes with Mr Kowalski.
Advocates
Robyn Layton QC and Rauf Soulio appeared on instructions from Fountain & Bönig as counsel for Mitsubishi in disputes with Mr Kowalski.
Benjamin Doyle and Valerie Heath appeared on instructions from Thomson Playford as counsel for Mitsubishi Superannuation and/or Mitsubishi in disputes with Mr Kowalski in the Federal Court.
Gary Copolla appeared on instructions from RJ Cole & Partners as counsel for RJ Cole & Partners in disputes with Mr Kowalski.
Frances Nelson QC appeared on instructions from Camatta Lempens as counsel for Mr Bourne in disputes with Mr Kowalski.
Jarrod Warren and Timothy Stanley QC appeared on instructions from Mr Dolphin as counsel for Mr Dolphin in disputes with Mr Kowalski.
Bruce Topperwein acted as representative for the Repatriation Commission in disputes in the Administration Appeals Tribunal with Mr Kowalski. Greg Camilos and Andrew Schatz of the Australian Government Solicitor appeared as advocates for the Repatriation Commission against Mr Kowalski in proceedings in the Federal Court.
Michael Dwyer of Sparke Helmore acted as solicitor for the Military Compensation Commission in disputes with Mr Kowalski. John Wallace of Sparke Helmore appeared as counsel for the Military Compensation Commission in the Administrative Appeals Tribunal and in the Federal Court in disputes with Mr Kowalski.
Simon Hanus appeared on instructions from Minter Ellison as counsel for Glenelg Pizza House in the Workers Compensation Tribunal in disputes with Mr Kowalski’s son, Steven Kowalski.
Decision makers
Neville Morcombe QC was the chairperson of the Legal Practitioners Disciplinary Tribunal (“the Disciplinary Tribunal”). Jon Clarke was a member of the Disciplinary Tribunal.
Anastasia Carabelas was an accredited freedom of information officer with Workcover.
Steve Roder was the Registrar of this Court.
Overview of underlying matters
Mr Kowalski was employed by Mitsubishi between 1964 and 1994.
Mr Kowalski undertook national service in the Australian Military between April 1972 and October 1973.
In March 1994, Mitsubishi wrote to Mr Kowalski stating that the contract of employment was frustrated and at an end.
Mitsubishi
Eye injury
In December 1986, Mr Kowalski suffered an injury to his eye at work at Mitsubishi. Mitsubishi paid weekly payments and medical expenses.
In August 1989, Mr Kowalski sued Mitsubishi in the District Court claiming damages for breach of duty of care and statutory duty. Mitsubishi admitted liability. In June 1992, Mr Kowalski accepted Mitsubishi’s offer to settle the action for $3,000 plus costs.
In July/August 1992, Mr Kowalski and Mitsubishi entered into settlement agreements settling all claims in respect of injuries suffered before 30 September 1987 for $23,000 (including his eye injury) and injuries suffered on or after 30 September 1987 for $53,000. The settlement at least in respect of injuries suffered on or after 30 September 1987 was conditional upon WorkCover’s consent.
In August 1992, a consent order was made by the Industrial Court determining Mr Kowalski’s entitlements to workers compensation and at common law in respect of his eye injury and any other pre-30 September 1987 injuries at $23,000 in accordance with the settlement agreement. Mitsubishi paid $23,000 to RJ Cole & Partners at the end of August 1992.
In September 1992, WorkCover refused its consent to the settlement in respect of Mr Kowalski’s post-30 September 1987 injuries.
In June 1993, the Industrial Court set aside the August 1992 consent order.
In September 1995, Mr Kowalski applied to the Industrial Court to set aside the June 1993 set aside order so as to reinstate the original consent order on the ground that he had not instructed RJ Cole & Partners to consent to the setting aside order. In April 1997, the Industrial Court dismissed that application. Mr Kowalski appealed against the dismissal.
Finger injury
In May 1988, Mr Kowalski suffered an injury to his finger at work at Mitsubishi. Mitsubishi paid weekly payments and medical expenses.
In May 1997, a Review Officer determined that Mr Kowalski was entitled to $289 lump sum compensation for non-economic loss together with reimbursement of $155 medical expenses. [14]
[14] All dollar figures are rounded down to the nearest dollar.
In June 1998, Mr Kowalski lodged with Mitsubishi a claim for redemption of weekly payments, which was rejected by Mitsubishi. In July 1998, Mr Kowalski filed in the Workers Compensation Tribunal a notice of dispute in relation to Mitsubishi’s rejection.
Back injury
In May 1989, Mr Kowalski suffered an injury to his back and consequentially to his left leg. Mitsubishi paid weekly payments and medical expenses.
In August 1990, Mr Kowalski sued Mitsubishi in the District Court claiming damages for breach of contract, duty of care and statutory duty. Mitsubishi denied liability. In July 1992, Mr Kowalski’s District Court action was dismissed by Judge Lee after trial. Judge Lee found that Mitsubishi was not negligent and said that Mr Kowalski had not persuaded him that he slipped on oil on 9 May 1989 in the way that he described.
In July/August 1992, as observed above, Mitsubishi and Mr Kowalski entered into a settlement of all claims by Mr Kowalski in respect of injuries after 30 September 1987 (including his back injury) for $53,000. WorkCover subsequently refused its consent to the settlement.
In February and November 1995, Mr Kowalski lodged with Mitsubishi claims for weekly payments, medical expenses and lump sum for non-economic loss. Mitsubishi rejected the claims, ultimately on the ground that Judge Lee’s July 1992 judgment gave rise to issue estoppel precluding Mr Kowalski from contending that he suffered a back injury at work. Mr Kowalski applied to WorkCover for review of those rejections.
In March 1996, Review Officer Harbord decided preliminary issues on those applications for review. He rejected Mitsubishi’s contention that Judge Lee’s decision gave rise to a relevant issue estoppel and held that Mitsubishi was estopped from denying that Mr Kowalski had suffered a compensable disability.
Mitsubishi issued judicial review proceedings in this Court. In November 1996, Debelle J quashed Review Officer Harbord’s decision. Debelle J held that there was a relevant issue estoppel arising from Judge Lee’s decision and Mitsubishi was not subject to any relevant estoppel.
Mr Kowalski appealed to the Full Court. In July 1997, the Full Court partially allowed the appeal. The Full Court held that the issue estoppel arising from Judge Lee’s decision was confined to Mr Kowalski not having slipped on oil in the re-work area on 9 May 1989 and did not extend to the more general question whether he suffered a back injury at work in May 1989. Mr Kowalski was at liberty to argue before Review Officer Harbord that an earlier consent determination by Review Officer Lovering gave rise to an issue estoppel against Mitsubishi. The matter returned to the review panel.
On July 1998, Mr Kowalski lodged with Mitsubshi a claim for lump sum compensation for non-economic loss. The claim was rejected by Mitsubishi. Mr Kowalski filed in the Workers Compensation Tribunal a notice of dispute in relation to that rejection.
Emotional distress and mental breakdown
On 16 August 1991, an incident occurred at Mitsubishi which resulted in Mr Kowalski leaving work. He did not ever return. He claimed workers compensation for emotional distress as a result of the incident. The claim was rejected by Mitsubishi.
In October 1991, Mr Kowalski applied to WorkCover for review of that rejection. In March 1994, Review Officer Fender rejected Mr Kowalski’s emotional distress claim, rejecting his evidence concerning the incident on 16 August 1991. She also referred to evidence that any dysthymia or depressive neurosis suffered by him pre-dated and was not aggravated by the incident. Mr Kowalski appealed against that decision. In August 1996, Deputy President Gilchrist dismissed the appeal.
In November 1996, Mr Kowalski filed in the Workers Compensation Tribunal a notice of dispute claiming compensation for a mental breakdown suffered following his back injury. In February 1997, Deputy President Thompson struck out the notice of dispute.
Heart attack
In December 1997, Mr Kowalski suffered a heart attack. He claimed that this was the result of stress caused by ongoing litigation with Mitsubishi.
In April 1998, Mr Kowalski lodged with Mitsubishi a claim for compensation. In July 1998, Mr Kowalski filed in the Workers Compensation Tribunal an application for expedited decision because Mitsubishi had not determined his claim.
In August and September 1998, Mr Kowalski saw a psychiatrist, Professor McFarlane, and a cardiologist, Dr Sangster, arranged by Mitsubishi. Mitsubishi received a report from Dr Sangster which it passed on to Mr Kowalski. Mitsubishi received a draft report from Professor McFarlane, in which he said that he was unable to ascertain any other event beyond attempts to prove his innocence to which Mr Kowalski’s heart condition could be related. Mitsubishi did not pass the draft report on to Mr Kowalski. Mitsubishi did not apparently seek a final report from Professor McFarlane.
The Heads of Agreement
On 26 October 1998, a settlement was reached at mediation between Mr Kowalski and Mitsubishi. It was agreed that Mitsubishi would pay to Mr Kowalski $200,000 in settlement of all claims by Mr Kowalski against Mitsubishi and against Mitsubishi Superannuation.
On 27 October 1998, Mitsubishi and Mr and Mrs Kowalski executed a Heads of Agreement. Mitsubishi Superannuation was not named as a party and did not execute the Heads of Agreement (although it later claimed that it was entitled to rely upon it as a bar to claims by Mr Kowalski). All proceedings on foot in the Workers Compensation Tribunal and before the review panel were dismissed or determined by consent over the next 9 days.
Set aside applications and new claims

In July 1999, Mitsubishi made non-party discovery in Mr Kowalski’s professional negligence action against RJ Cole & Partners. One of the documents discovered was the draft report by Professor McFarlane.
In November 1999, Mr Kowalski filed in the Workers Compensation Tribunal an application to set aside one set of the consent determinations made as a result of the Heads of Agreement. This was initially on the ground of non-disclosure by Mitsubishi of Professor McFarlane’s draft report. Subsequently, Mr Kowalski expanded the grounds to encompass other alleged misconduct by Mitsubishi leading to execution of the Heads of Agreement. In addition, he alleged that parts of the Heads of Agreement were void under section 119 of the Workers Rehabilitation and Compensation Act 1986 (SA).
In August 2001, Deputy President McCouaig dismissed Mr Kowalski’s set aside application. Deputy President McCouaig held, inter alia, that the Heads of Agreement did not offend section 119 of the Workers Rehabilitation and Compensation Act 1986 (SA). Mr Kowalski appealed to the Full Bench.
Between October 2000 and January 2002, Mr Kowalski filed in the Workers Compensation Tribunal and in one case in the Workers Compensation Appeal Tribunal:
1.applications to set aside the other set of consent orders made in the Workers Compensation Tribunal and the consent orders made by the review panel[15] as a result of the Heads of Agreement;
2.a notice of dispute in respect of the first set of consent determinations challenged on the basis it was a deemed decision of Mitsubishi; and
3.a notice of dispute and an application for expedited decision in respect of post-October 1998 claims for compensation
which were ultimately heard and determined at first instance by the Full Bench of those Tribunals.
[15] This application was filed in the Workers Compensation Appeals Tribunal.
In December 2000, Mr Kowalski filed in the Workers Compensation Tribunal a notice of dispute claiming reimbursement of medical expenses in respect of his back injury. In March 2001, Deputy President Thompson dismissed the notice of dispute. Mr Kowalski appealed to the Full Bench.
On 19 August 2002, the Full Bench dismissed Mr Kowalski’s appeals against the decisions of Deputy Presidents McCouaig and Thompson. It dismissed Mr Kowalski’s applications to set aside the other consent orders in the Workers Compensation Tribunal and in the review panel. It dismissed or struck out Mr Kowalski’s other applications.
Between August 2002 and July 2004, Mr Kowalski filed notices of dispute, applications for expedited decision and appeals in relation to various claims for workers compensation. Each of those proceedings was dismissed by the Workers Compensation Tribunal except for an appeal lodged in August 2004 subsequently stayed by Bleby J.
In April 2005, Bleby J made an order under section 39 of the Act prohibiting Mr Kowalski from instituting proceedings against Mitsubishi or related entities without leave of the Court. Mr Kowalski’s appeal to the Full Court was ultimately dismissed.
Mitsubishi Superannuation
Between April 1992 and February 1994, Mr Kowalski received periodic payments from the Mitsubishi Superannuation Fund for total temporary disablement.
In March 1994, Mitsubishi wrote to Mr Kowalski stating that the contract of employment was frustrated and was at an end.
Mr Kowalski claimed that he was entitled to payment of a total and permanent disability benefit out of the Mitsubishi Superannuation Fund.
Mr Kowalski instituted proceedings against Mitsubishi Superannuation in the Federal Court in 2001 claiming an entitlement to a total and permanent disability benefit. The Federal Court held that it had no jurisdiction to entertain his claim.
In April 2006, Master Lunn granted leave under section 39 of the Act to Mr Kowalski to institute proceedings in the District Court against Mitsubishi Superannuation claiming an entitlement to a total and permanent disability benefit. Mr Kowalski instituted the proceedings in the District Court.
In June 2006, on the application of Mitsubishi Superannuation, Doyle CJ set aside the grant of leave by Master Lunn on the ground that Mr Kowalski’s proposed statement of claim did not disclose a reasonable cause of action. Doyle CJ granted leave to appeal to the Full Court limited to the issue of the power of the Court to set aside a grant of leave. Mr Kowalski did not file a notice of appeal because he was either unable or unwilling to pay the filing fee and his application for remission of fees was unsuccessful.
In 2007, Mr Kowalski instituted new proceedings in the Federal Court against Mitsubishi Superannuation and AMP Superannuation, claiming an entitlement to a total and permanent disability benefit. His application was ultimately summarily dismissed.
Stanley & Partners
In August 1989, Stanley & Partners (Mr Bourne) instituted Mr Kowalski’s action in the District Court against Mitsubishi for damages for breach of duty of care and statutory duty in respect of his eye injury.
In January 1991, Mr Bourne drafted proceedings in the Industrial Court seeking finalisation of his entitlements in respect of his eye injury. At about that point, Mr Kowalski instructed RJ Cole & Partners to take over conduct of the matter from Stanley & Partners (although it ultimately took several months before RJ Cole & Partners took over the substantive conduct of Mr Kowalski’s claims).
In February 1991, Stanley & Partners rendered to Mr Kowalski a bill for $2,152 for work in connection with his eye injury and $150 for an unrelated matter..
In September 1991, Mr Kowalski required Stanley & Partners to tax their costs. In November 1991, Stanley & Partners rendered to Mr Kowalski a bill for an additional $4,009 being $1,522 for work undertaken since (and perhaps before) February 1991 and $2,487 for preparation of a draft bill of costs. The total shown on the bill as owing was $6,311.
In January 1993, Stanley & Partners sued Mr Kowalski in the Magistrates Court for $6,311 plus costs. Mr Kowalski consented to judgment. Consent judgment was entered for $6,684. In July 1993, Mr Kowalski paid the judgment debt.
In December 1995, Mr Kowalski applied for leave to appeal to this Court against refusals by Magistrates to set aside the consent judgment or rescind or tax Stanley & Partners’ costs. He later amended his application to seek an extension of time to appeal against the consent judgment itself. In November 1996, Williams J refused his application for an extension of time and subsequently refused applications to re-open that refusal.
In December 1997, Mr Kowalski filed in the Legal Practitioners Disciplinary Tribunal a charge of unprofessional conduct against Mr Bourne which he withdrew due to ill health in October 1999.
In April 2010, Mr Kowalski instituted proceedings in the Federal Magistrates Court against Mr Bourne alleging misleading conduct on 26 April 2010 and other causes of action. In August 2010, those proceedings were dismissed and in March 2011 an appeal to the Federal Court was dismissed.
In May 2010, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Bourne by making false statements on 26 April 2010. In April 2012, he filed a further charge of unprofessional conduct.
In March 2011, Mr Kowalski filed in the Industrial Relations Court a summons against Mr Bourne seeking declarations of entitlement to the return of monies paid in contravention of section 41(3) of the Workers Compensation Act 1971 (SA). In August 2011, Judge Hannon dismissed the claim. Mr Kowalski appealed to the Full Bench.
In August 2011, Mr Kowalski filed in the Magistrates Court an information against Mr Bourne, which was dismissed by Dr Cannon DCM in October 2011. Mr Kowalski’s appeal to this Court against that dismissal was dismissed in January 2012.
RJ Cole & Partners
In August 1990, RJ Cole & Partners instituted Mr Kowalski’s District Court action against Mitsubishi claiming damages for breach of contract, duty of care and statutory duty. RJ Cole & Partners acted for Mr Kowalski in the trial. In July 1992, Judge Lee dismissed the claim.
Over the course of 1991, RJ Cole & Partners took over the conduct of Mr Kowalski’s eye injury claims from Stanley & Partners.
In June 1992, RJ Cole & Partners accepted on Mr Kowalski’s behalf Mitsubishi’s offer to settle the eye injury common law action for $3,000 plus party/party costs. In July/August 1992, they negotiated on behalf of Mr Kowalski settlement of all claims against Mitsubishi for $23,000 and $53,000. They filed in the Industrial Court an application seeking finalisation of Mr Kowalski’s entitlements in respect of his eye injury.
On 31 August 1992, RJ Cole & Partners banked into their trust account $23,000 received from Mitsubishi in settlement of Mr Kowalski’s pre‑30 September 1987 injury claims. In August/September 1992, they appropriated from the $23,000 received from Mitsubishi $18,634 in payment of their March bill in respect of Mr Kowalski’s back injury and $483 in payment of bills in respect of his eye injury. They apparently did not inform Mr Kowalski of the appropriations until December 1995.
In June 1994, Mr Kowalski paid to RJ Cole & Partners $10,000 in part payment of their bills in response to their demands.
In December 1995, RJ Cole & Partners paid back into their trust account $9,118 being the balance of the monies appropriated to their bills in August/September 1992 less the $10,000 paid by Mr Kowalski in June 1994. They informed him of the appropriations of trust monies in payment of their costs and sought instructions on the disposition of the balance of $9,118 held in trust, of which Mitsubishi was demanding repayment of $6,118.
In July 1996, RJ Cole & Partners filed in this Court an application to tax their costs for acting for Mr Kowalski.
In July 1996, Mr Kowalski sued RJ Cole & Partners in the District Court for professional negligence. The taxation of RJ Cole & Partners’ costs in this Court awaited the outcome of that action.
In March 2002, Judge Anderson dismissed Mr Kowalski’s claim against RJ Cole & Partners after a trial. Mr Kowalski was ordered to pay the defendants’ costs to be taxed. There were prolonged proceedings in the District Court involving the taxation of RJ Cole & Partners’ costs. Various disputes arose in the course of that taxation.
In August 2004, May 2005 and July 2005, Mr Kowalski filed in the Disciplinary Tribunal charges of unprofessional conduct against the principals of RJ Cole & Partners relating to their appropriation of and dealings with trust monies.
In July 2005, on Mr Kowalski’s application, Master Lunn struck out RJ Cole & Partners’ application to tax their costs for want of prosecution. Subsequently, Mr Kowalski made unsuccessful applications to set aside that striking out and for a refund of monies transferred from their trust account.
In July 2007, a Magistrate granted a declaration in favour of RJ Cole & Partners that $9,118 then in their trust account were their own monies.
In April 2008, Mr Kowalski instituted proceedings in the Federal Magistrates Court against RJ Cole & Partners for misleading conduct and other causes of action in respect of $18,634 transferred from their trust account, amounts totalling $11,935 paid by Mr Kowalski to them and $3,000 not paid by RJ Cole & Partners to him. In October 2009, the proceedings were summarily dismissed. In April 2010, the Federal Court refused leave to appeal.
In May 2010, Mr Kowalski instituted a second set of proceedings in the Federal Magistrates Court against RJ Cole & Partners. In October 2010, they were summarily dismissed.
In March 2011, Mr Kowalski filed in the Industrial Relations Court a summons against RJ Cole & Partners seeking declarations, inter alia, that RJ Cole & Partners transferred $18,634 and $483 from their trust account to their office account in contravention of section 41(3) of the Workers Compensation Act 1971 (SA). In August 2011, Judge Hannon dismissed the claim. Mr Kowalski appealed to the Full Bench.
In September 2011 and January 2012, Mr Kowalski filed in the Magistrates Court informations against the principals of RJ Cole & Partners. The informations were dismissed and permanently stayed respectively. Mr Kowalski’s appeal to this Court against the dismissal was dismissed in March 2012.
Lieschke & Weatherill
As observed above, Mr Kowalski’s appeal to the Workers Compensation Appeal Tribunal against the decision of Review Officer Fender was ultimately dismissed by Deputy President Gilchrist in August 1996. In May 1995, Deputy President Gilchrist had initially allowed Mr Kowalski’s appeal and remitted the matter for fresh hearing before a different review officer.
Mitsubishi applied to the Full Court of this Court for leave to appeal against that decision and the appeal was listed for hearing in November 1995. In November 1995, Mr Kowalski retained Lieschke & Weatherill as solicitors for and Mr Weatherill to appear as counsel at the hearing of the appeal. Mr Kowalski paid $2,000 into their trust account as security for their costs.
In November 1995, after the hearing of the appeal, Lieschke & Weatherill rendered to Mr Kowalski a bill for $3,120 and transferred the $2,000 held in their trust account in part payment of the bill.
In February 1996, the Full Court allowed Mitsubishi’s appeal and set aside Deputy President Gilchrist’s orders. Mr Kowalski expressed dissatisfaction to Mr Weatherill about his conduct of the matter. He complained about the costs and the appropriation of trust monies in part payment of the firm’s bill. He requested a bill of costs in taxable form.
In June/July 2007, Mr Kowalski wrote to Lieschke & Weatherill reiterating his request for a bill of costs in taxable form and demanding repayment of $2,000 appropriated towards costs without his authority. In July 2007, the then proprietor of Lieschke & Weatherill, Mr Dolphin, wrote to Mr Kowalski rejecting his claims.
In August 2007 and April 2010, Mr Kowalski filed in the Disciplinary Tribunal charges of unprofessional conduct against Mr Dolphin relating to his July 2007 letter and to his subsequent conduct in the Tribunal in relation to the first charge.
In or before May 2010, Mr Kowalski instituted proceedings in the Federal Magistrates Court against Mr Dolphin for misleading conduct by his July 2007 letter. In January 2011, the proceedings were dismissed. He instituted proceedings in the Federal Court against Lieschke & Weatherill, Mr Dolphin and others, which were stayed in April 2011 as a result of the orders by Stone J referred to at [132] below.
In September 2011, Mr Kowalski lodged for filing in the Magistrates Court an information against Mr Weatherill. In October 2011, the Magistrates Court ordered that the information not be received for filing.
Federal instrumentalities
In 2005, Mr Kowalski instituted proceedings in the Administrative Appeals Tribunal against the Military Compensation Commission seeking compensation for anxiety, duodenal ulcer, depression and heart attack as a result of his military service. He subsequently brought other claims in the Administrative Appeals Tribunal against the Military Compensation Commission and the Repatriation Commission seeking compensation for injuries and diseases resulting from his military service. He also brought proceedings against Medicare Australia.
Mr Kowalski’s proceedings in the Administrative Appeals Tribunal were dismissed and his appeals to single Judges and Full Courts of the Federal Court were also dismissed. In the course of their reasons for judgment, members of the Administrative Appeals Tribunal made findings that Mr Kowalski’s conditions were not caused by his military service but rather by his disputes with Mitsubishi.
Prohibition proceedings in the Federal Court
In April 2011, on the application of the Registrar, Stone J in the Federal Court made an order under Order 21 of the Federal Court Rules 1979 (Cth) prohibiting Mr Kowalski from instituting or continuing proceedings in the Federal Court without leave of the Court. Mr Kowalski’s appeal to a Full Court against that order was dismissed.
Advocates for primary opponents
Various solicitors, counsel and advocates acted and appeared for Mitsubishi, Mitsubishi Superannuation, RJ Cole & Partners, Stanley & Partners, Lieschke & Weatherill, the Military Compensation Commission, the Repatriation Commission and Medicare Australia in their disputes with Mr Kowalski.
Between 2004 and 2012, Mr Kowalski filed in the Disciplinary Tribunal charges of unprofessional conduct against many of those solicitors, counsel and advocates. The charges generally related to the conduct of the solicitors in communications with the relevant court, tribunal or Mr Kowalski and appearances and submissions by counsel and advocates before the various courts and tribunals. Those against whom charges were brought comprised:
·Mr Fountain, Ms Layton QC, Mr Soulio and Mr Doyle who were solicitors or counsel for Mitsubishi;
·Mr Voss, Ms Christie, Ms Halkett, Mr White, and Ms Heath, who were solicitors or counsel for Mitsubishi Superannuation;
·Mr Forrest, Ms Schammer and Mr Coppola who were solicitors or counsel for RJ Cole & Partners;
·Mr Camatta and Ms Nelson QC who were solicitor and counsel for Mr Bourne;
·Mr Warren and Mr Stanley QC who were counsel for Mr Dolphin;
·Mr Dwyer and Mr Wallace who were solicitors or counsel for the Military Compensation Commission;
·Mr Camilos, Mr Schatz and Ms Vuksan who were solicitors or counsel for the Repatriation Commission and/or Medicare Australia;
·Mr Topperwein who represented the Repatriation Commission;
·Mr Hanus who was counsel for Glenelg Pizza House.
Decision‑makers
Between 2008 and 2012, Mr Kowalski filed in the Disciplinary Tribunal charges of unprofessional conduct against:
·Ms Carabelas who was an FOI officer at WorkCover;
·Mr Morcombe QC and Mr Clarke who were members of the Disciplinary Tribunal;
·Mr Roder who was the Registrar of this Court.
B BACKGROUND LEGAL PRINCIPLES
The workers compensation regime
Many of the underlying matters involve claims by Mr Kowalski to workers compensation entitlements referable to his employment by Mitsubishi.
The Workers Compensation Act 1971 (SA) (“the 1971 Act”) was in force until 30 September 1987.[16] It continues to apply in respect of an injury attributable to a trauma that occurred before 30 September 1987.
[16] Some provisions ceased on 16 April 1987 but they can be ignored for present purposes.
The Workers Rehabilitation and Compensation Act 1986 (SA) (“the 1986 Act”) came into force on 30 September 1987.[17] It applies to injuries attributable to trauma that occurred on or after 30 September 1987.
[17] Some provisions came into force on 16 April 1987, but they can be ignored for present purposes.
Entitlement to compensation
Under section 9 of the 1971 Act, a worker was entitled to compensation if the worker suffered personal injury arising out of or in the course of employment.
Under section 30 of the 1986 Act, a worker was entitled to compensation if the worker suffered disability arising out of or in the course of employment. Employment included attendances to apply for or receive compensation for a compensable disability. If the disability was a disease or secondary disability (aggravation, acceleration, exacerbation, deterioration or recurrence (collectively “aggravation”) of a prior disability) and arose in the course of employment, it was necessary also that the employment contributed to the disability.
Incidence of liability
Under section 9 of the 1971 Act, compensation was payable by the employer.[18] Under section 46 of the 1986 Act, compensation was payable by WorkCover, unless the employer was an exempt employer, in which case it was payable by the exempt employer.[19]
[18] Employers were generally required to be insured against that liability.
[19] Workers Rehabilitation and Compensation Act 1986 (SA) s 42.

Under section 63 of the 1986 Act, most powers and discretions of WorkCover were delegated to the exempt employer. Under section 63(3aa),[20] an exempt employer was precluded from making an assessment under section 42A for loss of future earning capacity as a capital loss without first obtaining WorkCover’s consent and was subject to direction by WorkCover how to exercise its powers and discretions thereunder.
[20] In force with effect from 1 July 1993.
Primary compensation
There were three types of primary compensation payable under the legislation. Under section 51 of the 1971 Act and section 35 of the 1986 Act, where the compensable disability resulted in incapacity for work, the worker was entitled to weekly payments during incapacity.
Under section 59 of the 1971 Act and section 32 of the 1986 Act, where the compensable disability resulted in the worker reasonably incurring expenses for medical, hospital or other treatment or other incidental matters (collectively “medical expenses”), the worker was entitled to compensation for those expenses.
Under sections 69 and 70 of the 1971 Act and section 43 of the 1986 Act, where the compensable disability was or became a permanent disability, the worker was entitled to compensation for non-economic loss by way of a lump sum. The amount of the lump sum was determined as a percentage of a prescribed sum depending on the nature and degree of the disability.
Redemption
Under section 72 of the 1971 Act, the liability for one or more of the three primary types of compensation could be redeemed by payment of a capital sum. The capital sum could be settled either by agreement between the worker and employer or by the Industrial Court in default of agreement.
Under section 42 of the 1986 Act as in force up to 24 May 1995, WorkCover or an exempt employer was empowered (but not obliged), upon application by a worker, to commute the liability to make weekly payments to a liability to pay a lump sum representing the capital value of the liability to make weekly payments,[21] provided that the incapacity was permanent and the capital payment did not exceed the prescribed sum.[22]
[21] From 1 July 1994, section 42 required this to be actuarially equivalent to future expected weekly payments.
[22] $65,300 in relation to a disability occurring in 1987 and an indexed amount in relation to a disability occurring in a subsequent year.
Under section 42 of the 1986 Act as in force between 24 May 1995 and 30 June 2008, a liability to make weekly payments or pay medical expenses[23] or (from 17 August 1995) a capital payment for the loss of future earning capacity[24] could, by agreement between WorkCover or an exempt employer and the worker, be redeemed by a capital payment to the worker. There were preconditions to the making of an agreement for redemption that, inter alia, a medical expert certified that the extent of the worker’s incapacity resulting from the compensable disability could be determined with reasonable confidence and the worker had received competent professional and financial advice.
[23] Such redemption was permitted from 25 May 1995 under amendments made by the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Act 1995 (SA) (No 35 of 1995).
[24] Such redemption was permitted from 17 August 1995 under amendments made by the Workers Rehabilitation and Compensation (Miscellaneous) Act 1995 (SA) (No 56 of 1995).
Under section 42A of the 1986 Act as in force between 1 July 1993 and 1 July 2008, WorkCover or an exempt employer was empowered to assess a worker’s loss of future earning capacity as a capital loss in lieu of future weekly payments provided that the worker had been incapacitated for work as a result of a compensable disability for more than two years. This power did not require application by or agreement of the worker. An exempt employer could not exercise the power under section 42A without WorkCover’s consent.
Independent causes of action
Under section 82 of the 1971 Act, causes of action available to a worker independently of the Act were preserved.
Under section 54 of the 1986 Act as in force until 2 December 1992, an employer was exempted from any liability independently of the Act in respect of a compensable disability arising from employment except liability at common law for non-economic loss or solatium.[25] When the exception applied, the quantum of damages for non-economic loss was capped at 1.4 times the prescribed sum.[26]
[25] Unless liability arose out of the use of a motor vehicle against which the employer was required to be insured under the law of compulsory third party motor vehicle insurance. This exception is not relevant to Mr Kowalski’s claims.
[26] The prescribed sum being $65,300 in relation to a disability occurring in 1987 and an indexed amount in relation to a disability occurring in a subsequent year.
As from 3 December 1992, an employer was exempted from all liability independently of the Act in respect of a compensable disability arising from employment.[27]
[27] Unless liability arose out of the use of a motor vehicle against which the employer was required to be insured under the law of compulsory third party motor vehicle insurance.
Dispute resolution jurisdiction
1971 Act
Under sections 21 and 39 of the 1971 Act, the Industrial Court of South Australia had jurisdiction to hear and determine disputes in connection with liability or amounts of compensation under the Act. An appeal lay to the Full Industrial Court[28] and on a matter of law to the Full Court of the Supreme Court.[29] This jurisdiction continued after 30 September 1987 in respect of injuries attributable to trauma occurring before 30 September 1987. The Industrial Court has been continued in existence as the Industrial Relations Court of South Australia.[30]
[28] Workers Compensation Act 1971 (SA) ss 44–45a.
[29] Workers Compensation Act 1971 (SA) Act s 47.
[30] Fair Work Act 1994 (SA) s 8.
Under section 35 of the 1971 Act, any agreement as to the payment of a lump sum under the Act (under sections 69, 70 or 72) was required to be registered and had no force or effect until registered. The Registrar was entitled to refuse to register an agreement if the Registrar formed the opinion that it may work injustice to the worker or employer or there was insufficient information to form such a view.
1986 Act to 2 June 1996
Under section 52(1) of the 1986 Act, a worker was required to make a claim for compensation within six months of the entitlement arising and in a manner and form approved by WorkCover. Under section 53, WorkCover or the exempt employer was required to determine a claim for compensation expeditiously after undertaking investigations and enquiries necessary for that purpose. First instance decisions on contested claims were now to be made by WorkCover or the exempt employer. WorkCover to an extent, and an exempt employer to an even greater extent, had a financial interest in minimising amounts paid as compensation, but the Act proceeded on the assumption that the first instance decision-maker would make a decision on entitlements under the Act independently of its own interests.[31]
[31] Robbins v Harbord (1994) 62 SASR 229 at 236 per King CJ (Mohr and Nyland JJ agreeing).
Under the 1986 Act, the position of Review Officer was established.[32] These were officers of WorkCover but their reviews were independent of WorkCover. A Workers Compensation Appeal Tribunal was also established.[33] It comprised a President, Deputy President and ordinary members.
[32] Workers Rehabilitation and Compensation Act 1986 (SA) s 77.
[33] Workers Rehabilitation and Compensation Act 1986 (SA) s 78-80.
Under section 95, a worker directly affected by a reviewable decision was entitled to apply for a review of the decision within one month.[34] After attempts to resolve the dispute, the application was to be reviewed by a Review Officer who was required to make a fresh determination of the matters to which the decision related.[35]
[34] Workers Rehabilitation and Compensation Act 1986 (SA) s 95.
[35] Workers Rehabilitation and Compensation Act 1986 (SA) ss 95 and 96.
The worker (or WorkCover or an exempt employer) was given a right of appeal against the decision on review to the Workers Compensation Appeal Tribunal. A decision of the Tribunal was subject to appeal to the Supreme Court with leave on a question of law.[36] The jurisdiction for reviews and appeals continued after 3 June 1996 in respect of applications for review made before 3 June 1996.[37]
1986 Act from 3 June 1996
[36] Workers Rehabilitation and Compensation Act 1986 (SA) s 100.
[37] See [165] below.
As from 3 June 1996, the regime for reviews and appeals was replaced by a new regime by virtue of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (SA) (“the 1995 Act”).
A new Workers Compensation Tribunal was established.[38] It comprised Presidential Members (the President and Deputy Presidents) and Conciliation and Arbitration Officers who might variously act as conciliators or arbitrators. Three Presidential Members comprised a Full Bench.
[38] Workers Rehabilitation and Compensation Act 1986 (SA) ss 77-88I.
A worker was entitled to lodge a notice of dispute with the Registrar of the Tribunal.[39] The notice of dispute was required to be lodged within one month of notice of the reviewable decision, subject to the power of the Tribunal to allow an extension of time.[40] On receiving the notice of dispute, WorkCover or the exempt employer was required to assign a suitable person to reconsider the disputed decision and either confirm or vary it.[41] A reviewable decision included a decision on a claim for compensation; to vary, review, suspend or discontinue weekly payments; to disallow or reduce a medical service charge; or about the nature of rehabilitation services.[42]
[39] Workers Rehabilitation and Compensation Act 1986 (SA) s 90.
[40] Workers Rehabilitation and Compensation Act 1986 (SA) s 90A.
[41] Workers Rehabilitation and Compensation Act 1986 (SA) s 91.
[42] Workers Rehabilitation and Compensation Act 1986 (SA) s 89A.
If the decision was confirmed or was varied to the dissatisfaction of the worker (or WorkCover or the exempt employer), the Registrar was required to refer the dispute for conciliation by a Presidential Member or Conciliation Officer.[43] If the dispute was not settled at conciliation, the conciliator was required to refer the dispute into the Tribunal for arbitration or judicial determination.[44] Judicial determination was to be made by a single Presidential Member of the Tribunal, unless the President referred the dispute directly to a Full Bench.[45] Judicial determination was by way of rehearing without regard to decisions taken in earlier proceedings.[46]
[43] Workers Rehabilitation and Compensation Act 1986 (SA) ss 91A-92C.
[44] Workers Rehabilitation and Compensation Act 1986 (SA) s 92D.
[45] Workers Rehabilitation and Compensation Act 1986 (SA) ss 94, 94A.
[46] Workers Rehabilitation and Compensation Act 1986 (SA) s 94C.
A worker who believed that there had been undue delay by WorkCover or the exempt employer in making a reviewable decision was entitled to apply to the Tribunal for expedited determination of the matter. The Tribunal was empowered on such an application either to give directions to expedite the determination of the matter or to decide the matter itself.[47]
[47] Workers Rehabilitation and Compensation Act 1986 (SA) s 97-97B.
The worker (or WorkCover or the exempt employer) was given a right to appeal on a question of law from a decision of a Presidential Member to a Full Bench of the Tribunal.[48] There was no right of appeal to the Supreme Court.[49] Subject to preserving judicial review proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction, no decision of the Tribunal could be challenged, appealed against, reviewed, quashed or called in question.[50]
Transition
[48] Workers Rehabilitation and Compensation Act 1986 (SA) s 86.
[49] Since 1 January 2009, s 86A(2) has conferred a right of appeal from a decision of the Full Bench on a question of law with permission of a Judge of the Supreme Court.
[50] Workers Rehabilitation and Compensation Act 1986 (SA) s 88I.
Under the transitional provisions of the 1995 Act, Deputy Presidents, the Registrar and staff of the Workers Compensation Appeal Tribunal ipso facto were appointed to office in the corresponding roles in the Workers Compensation Tribunal.[51] Under the transitional provisions of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1996 (“the 1996 Act”), proceedings commenced before 3 June 1996 under the previous regime were required to be continued and completed under that regime.[52] Otherwise, the new regime applied to compensable disabilities suffered before and after 3 June 1996.[53]
Costs
[51] Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (SA) s 17(1)-(3), (7) and (8).
[52] Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1996 (SA) s 6(b) introducing replacement ss 17(4) and (5) into the 1995 Act.
[53] Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1996 (SA) s 6(b) introducing replacement ss 17(4) into the 1995 Act.
Under section 41 of the 1971 Act, a legal practitioner acting for a worker was prohibited from recovering from the worker any costs in respect of proceedings under that Act unless they had been awarded by the Court. The Industrial Court was given jurisdiction under section 41(2) in respect of costs as between the worker and the worker’s solicitor. There was no equivalent of section 41(2) in the 1986 Act.
Under section 95 of the 1986 Act in force from 3 June 1996, a worker was not ordinarily liable for costs of the opposing party in the Workers Compensation Tribunal, other than in the Full Bench on an appeal or reference on a question of law. However, under section 95(3), the Tribunal had power to order costs against a worker if of the opinion that the worker had acted unreasonably, frivolously or vexatiously.
Rules
The Rules which governed proceedings in the Industrial Court and the Industrial Relations Court under the 1971 Act from June 1980 onwards were the Workers Compensation Rules 1980 (SA).
The Rules which governed proceedings in the Workers Compensation Tribunal from 30 June 1996 to 17 October 2001 were the Workers Compensation Tribunal Rules 1996 (SA) (“the 1996 WCT Rules”).
Rule 10 of the 1996 WCT Rules gave to a Presidential Member a general power to give effect to the purpose of the Rules, including striking out or dismissing a step in a proceeding and revoking and varying any order. Rule 23 required an agreement for payment of a lump sum by way of compensation under the Act to be in accordance with Form 5 and to be lodged for registration.
The Workers Compensation Tribunal Rules 2001 (SA) (“the 2001 WCT Rules”) governed the procedure in the Workers Compensation Tribunal from 17 October 2001 to 24 July 2005.[54] Rule 21 gave powers similar to rule 10 of the 1996 WCT Rules. Rule 10(1) empowered the President to direct the Registrar to strike out proceedings which were vexatious or an abuse of process.
[54] The 2001 Rules were disallowed by Parliament on 26 March 2003 and then reinstated on 30 April 2003. Directions, acts and orders previously authorised by the 2001 Rules and made in the intervening period of 5 weeks were validated as part of the 30 April 2003 reinstatement.
Settlement agreements
As summarised above, section 42 of the 1986 Act after 25 May 1995 provided for agreements by workers for redemption by a capital sum of weekly payments and/or medical expense entitlements. The preconditions for the protection of workers entering into such agreements are summarised at [148] above.
Section 119(1) 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.
The legal practitioners disciplinary regime
The Legal Practitioners Act 1981 (SA) (“the Legal Practitioners Act”) created a regime for the discipline of legal practitioners.
Unprofessional and unsatisfactory conduct
The Legal Practitioners Act defined unprofessional conduct as:
(a)an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b)any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute[55]
and unsatisfactory conduct as:
… conduct in the course of, or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.^[56]
[55] Legal Practitioners Act 1981 (SA) s 5(1).
[56] Legal Practitioners Act 1981 (SA) s 5(1).
A charge of unprofessional conduct could be laid by the Attorney-General, the Legal Practitioners Conduct Board, the Law Society of South Australia or a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct.[57] A charge was required to be laid within five years of the conduct unless laid by or with the written consent of the Attorney-General.[58]
[57] Legal Practitioners Act 1981 (SA) s 82(2).
[58] Legal Practitioners Act 1981 (SA) s 82(2a).
The Disciplinary Tribunal
The Disciplinary Tribunal comprised a presiding member, deputy presiding member and thirteen other members.[59] The Tribunal had jurisdiction to inquire into the conduct of a legal practitioner against whom a charge was laid alleging unprofessional or unsatisfactory conduct.[60] A legal practitioner who was an individual was defined to be either:
·a person duly admitted and enrolled as a barrister and solicitor of this Court; or
·a person admitted as a legal practitioner in a participating State who holds an interstate practising certificate whose principal place of legal practice is outside the State but who practises the profession of the law in this State.[61]
[59] Legal Practitioners Act 1981 (SA) s 78.
[60] Legal Practitioners Act 1981 (SA) s 82.
[61] Legal Practitioners Act 1981 (SA) s 5(1).
In relation to proceedings alleging unprofessional conduct, the Tribunal was to consist of three members chosen by the presiding member. In relation to proceedings alleging only unsatisfactory conduct, the Tribunal was to consist of a single member chosen by the presiding member.[62]
[62] Legal Practitioners Act 1981 (SA) s 80.
The Tribunal had various powers which it could exercise if satisfied that a legal practitioner was guilty of unprofessional or unsatisfactory conduct, the most serious of which was suspension of the legal practitioner’s practising certificate for up to six months upon a finding of unprofessional conduct. Alternatively, upon a finding of unprofessional conduct, it could recommend that disciplinary proceedings be commenced against the legal practitioner in this Court.[63]
[63] Legal Practitioners Act 1981 (SA) s 82(6) (subject to s 82(6a)).
The Tribunal had power to dismiss summarily any charge that it considered frivolous or vexatious.[64]
[64] Legal Practitioners Act 1981 (SA) s 82(5).
A right of appeal lay to this Court against a decision of the Tribunal.[65]
[65] Legal Practitioners Act 1981 (SA) s 86.
Tribunal rules
The rules which governed proceedings in the Tribunal from 27 January 1983 onwards were the Legal Practitioners Disciplinary Tribunal Rules (“the Disciplinary Tribunal Rules”).
The binding nature of judicial decisions
The Attorney-General contends that some underlying matters were instituted without reasonable ground because Mr Kowalski sought therein to advance claims or make contentions inconsistent with previous decisions determining the relevant issue in a manner binding upon him. The Attorney-General relies upon doctrines of res judicata and issue estoppel in this regard.

Mr Warren appeared as counsel for Mr Dolphin in Disciplinary Tribunal action 6 of 2007 on 1 February and 11 March 2010. The charge related to statements by Mr Warren concerning his possession or knowledge of documents. The charge did not raise for determination any issue as between Mr Kowalski and Lieschke & Weatherill. I am not satisfied that Mr Kowalski instituted the proceedings for any of the ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Stanley QC 16 April 2010 (A28)
On 16 April 2010, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Stanley QC (A28).
Mr Stanley QC appeared on 16 April 2010 in the Disciplinary Tribunal as counsel for Mr Dolphin in action 6 of 2007. The charge related to submissions by Mr Stanley QC concerning Mr Dolphin’s state of mind in July 2007 and Mr Kowalski and documents which Mr Dolphin exhibited or did not exhibit to his affidavit of December 2009. Because the charge was manifestly untenable, an inference is open that Mr Kowalski must have been proceeding for an ulterior purpose. However, ultimately for reasons similar to those in respect of the charge against Mr Coppola addressed at [1910] above, I am not satisfied that Mr Kowalski instituted the proceedings against Mr Stanley QC for the ulterior purposes alleged by the Attorney-General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Federal instrumentality advocates
Charge against Mr Dwyer 28 February 2008 (A16)
On 28 February 2008, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Dwyer (A16).
Mr Dwyer was the solicitor for the Military Compensation Commission in action 4618 of 2007 in the Administrative Appeals Tribunal and Mr Kowalski’s subsequent appeal to the Federal Court in action 15 of 2009.
The charge related to Mr Dwyer’s compilation of the documents in the Administrative Appeals Tribunal, Mr Dwyer’s letter concerning the appeal books in the Federal Court appeal and letters written by Mr Dwyer to Professor Goldney and Dr Reid concerning answering written questions posed to them by Mr Kowalski. The charges raised procedural matters and did not raise for determination any substantive issue as between Mr Kowalski and the Military Compensation Commission.
I am not satisfied that Mr Kowalski instituted the proceedings for an ulterior purpose in relation to issues between Mr Kowalski and the Military Compensation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Wallace 23 June 2008 (A18)
On 23 June 2008, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Wallace (A18).
Mr Wallace was counsel for the Military Compensation Commission in actions before the Administrative Appeals Tribunal on 19 June 2008 and 1 September 2008.
The charge related to statements made by Mr Wallace to the Tribunal concerning a question asked of a witness by Mr Kowalski and concerning the authorship of writing on an exhibit. The charge also related to Mr Wallace practising law in South Australia without holding a practising certificate.
The charge concerned Mr Wallace’s personal conduct and did not raise for determination any substantive issues as between Mr Kowalski and the Military Compensation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for an ulterior purpose in relation to issues between Mr Kowalski and the Military Compensation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Wallace 5 May 2009 (A24)
On 5 May 2009, Mr Kowalski filed in the Disciplinary Tribunal a second charge of unprofessional conduct against Mr Wallace (A24).
Mr Wallace was counsel for the Military Compensation Commission at the hearing on 5 May 2009 by the Full Court of the Federal Court of Mr Kowalski’s appeal in action 15 of 2009 against the decision of the Administrative Appeals Tribunal in actions 112, 308 and 309 of 2005 and 185 of 2006.
The charge related to a statement by Mr Wallace to the Full Court as to whether the Commission had had a particular letter in its possession, custody or power.
The statement by Mr Wallace related to a procedural issue of discovery. The charge did not raise for determination any substantive issue between Mr Kowalski and the Military Compensation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the purpose of his disputes with the Military Compensation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Topperwein 15 August 2008 (A21)
On 15 August 2008, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Topperwein (A21).
Mr Topperwein appeared as advocate for the Repatriation Commission in the Administrative Appeals Tribunal on 11 August 2008. The charge related to a statement by Mr Topperwein to the Tribunal concerning a need for an assessment of Mr Kowalski by a doctor and concerning Mr Topperwein practising law in South Australia without holding a practising certificate.
The charges concerned the personal conduct of Mr Topperwein and did not raise for determination any substantive issue between the Repatriation Commission and Mr Kowalski. I am not satisfied that Mr Kowalski instituted the proceedings for an ulterior purpose in relation to issues between Mr Kowalski and the Repatriation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Camilos 23 January 2009 (A23)
On 23 January 2009, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Camilos who acted as solicitor and appeared as counsel for the Repatriation Commission in Federal Court action 168 of 2008 (A23).
The charge related to a statement by Mr Camilos to Besanko J on 22 January 2009, two outlines of submissions by Mr Camilos dated 5 June 2009 and 10 February 2010, a bill of costs dated 23 February and 22 March 2010 and the service or attempted service of documents upon Mr Kowalski on 1 and 26 March 2010.
The subject matters of the charge are not sufficiently connected with the substantive issues between Mr Kowalski and the Repatriation Commission to justify an inference that Mr Kowalski instituted the proceedings in the Disciplinary Tribunal for the ulterior purpose of his disputes with the Repatriation Commission. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Schatz 21 January 2010 (A25)
On 21 January 2010, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Schatz (A25).
Mr Schatz was counsel for the Repatriation Commission in action 176 of 2009. The charge related to submissions by Mr Schatz to Mansfield J on 15 December 2009 and a letter by Mr Schatz to Mr Kowalski dated 20 January 2010.
Mr Kowalski alleged that on the first occasion Mr Schatz sought orders restricting the filing of documents knowing that the Federal Court did not have jurisdiction to make them. Mr Kowalski alleged that on the second occasion Mr Schatz knowingly made false statements without identifying them. In the circumstances, it is not possible to determine whether the proceedings were instituted for an ulterior purpose.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Ms Vuksan 24 February 2010 (A27)
On 24 February 2010, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Ms Vuksan (A27).
Ms Vuksan was a solicitor acting for the Repatriation Commission in action 176 of 2009 in the Federal Court. The charge related to a letter sent by Ms Vuksan to the Associate to Mansfield J objecting to supplementary written submissions by Mr Kowalski. Mr Kowalski alleged that certain statements were false without identifying which or why they were false. In the circumstances, it is not possible to determine whether the proceedings were instituted by Mr Kowalski for an ulterior purpose.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Glenelg Pizza House advocate
Charge against Mr Hanus 8 August 07 (A13)
On 8 August 2007, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Hanus (A13).
Mr Hanus was counsel for Glenelg Pizza House in the Workers Compensation Tribunal in relation to an appeal by Steven Kowalski against dismissal of his claim for workers compensation. The charge related to appearances by Mr Hanus before the Full Bench on 7 August 2007 and 6 February 2008. Mr Kowalski alleged that Mr Hanus made a number of false statements to the Full Bench or Mr Kowalski and handed up to the Tribunal a fabricated document. For reasons similar to those in respect of the charge against Mr Coppola referred to at [1910] above, I am not satisfied that Mr Kowalski instituted the proceedings for the ulterior purpose of the dispute between Steven Kowalski and Glenelg Pizza House. I am not satisfied that Mr Kowalski instituted the proceedings for the other ulterior purposes alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Decision‑makers
The Attorney‑General contends that the four charges filed in the Disciplinary Tribunal by Mr Kowalski against Ms Carabelas, Mr Clarke, Mr Morcombe QC and Mr Roder were instituted for the ulterior purpose of harassing, annoying and intimidating persons making decisions contrary to Mr Kowalski.
Charge against Ms Carabelas 14 May 2008 (A17)
On 14 May 2008, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional against Ms Carabelas (A17).
Ms Carabelas was an accredited FOI officer at WorkCover. She determined Mr Kowalski’s application for internal review of a determination by another officer of his FOI request.
The charge alleged that Ms Carabelas made knowingly false statements in her letter to Mr Kowalski dated 9 May 2008 recording her determination. I am not satisfied that Mr Kowalski’s purpose was to harass, annoy and intimidate persons making decisions contrary to the defendant as opposed to his holding a genuine (albeit mistaken) belief that Ms Carabelas acted improperly in making her determination. Objectively, it was not likely, and not likely to be perceived by Mr Kowalski, that Ms Carabelas would reverse her determination in light of the charge.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Morcombe QC 7 November 2008 (A22)
On 7 November 2008, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Morcombe QC (A22).
Mr Morcombe QC was the Presiding Member of the Disciplinary Tribunal. He heard on 28 October 2008 Mr Kowalski’s charge against Mr Topperwein and on 29 October 2008 Mr Kowalski’s charge against Mr Wallace. He conducted a hearing on 24 November 2009 of Mr Kowalski’s charge against Mr Voss and Mr White and delivered findings and reasons in relation thereto on 9 December 2009.
Count 1 alleged that Mr Morcombe made false statements at the hearings on 28 and 29 October 2008. As the statements were not identified, I am not able to make a finding whether Mr Kowalski instituted the proceedings insofar as they involved count 1 for an ulterior purpose.
Counts 2, 3 and 4 alleged that Mr Morcombe QC conducted the hearing and made the ruling in relation to Mr Voss and Mr White by himself when he did not have power to do so. The Attorney‑General alleges that Mr Kowalski instituted the proceedings for the ulterior purpose of harassing, annoying and intimidating Mr Morcombe QC as a decision‑maker. Objectively it was not likely that Mr Morcombe QC would reverse his rulings by reason of the filing of the charge, nor that Mr Kowalski would have perceived that this was likely. I am not satisfied that Mr Kowalski instituted the proceedings for the ulterior purpose alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Clarke 20 April 2010 (A29)
On 20 April 2010, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Clarke (A29).
Mr Clarke was the Chairperson of the Disciplinary Tribunal Panel which heard and determined Mr Kowalski’s first charge against Mr Dolphin. The charge alleged that Mr Clarke made erroneous rulings concerning the tender of a document by Mr Kowalski and Mr Kowalski’s cross‑examination of Mr Dolphin.
I am not satisfied that Mr Kowalski’s purpose was to harass, annoy and intimidate Mr Clarke as a decision-maker as opposed to his holding a genuine (albeit mistaken) belief that Mr Clarke had acted improperly in making the rulings. Objectively, it was not likely, and not likely to be perceived by Mr Kowalski, that Mr Clarke would reverse his rulings in light of the filing of the charge.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Charge against Mr Roder 29 May 2012 (A35)
On 29 May 2012, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Roder (A35).
Mr Roder was and is the Registrar of this Court. The charge related to a letter written by Mr Roder as Registrar to Mr Kowalski on 23 May 2012 stating that he had been directed by David J to return the notice of appeal lodged for filing by Mr Kowalski because permission to appeal had not been granted.
The Attorney‑General contends that Mr Kowalski instituted the proceedings for the ulterior purpose of harassing, annoying and intimidating Mr Roder as a decision‑maker. Objectively, it was not likely that Mr Roder would have been influenced in relation to decision‑making by the filing of the charge, nor that Mr Kowalski would have perceived that this was likely. I am not satisfied that Mr Kowalski instituted the proceedings for the ulterior purpose alleged by the Attorney‑General.
The Attorney‑General has not established that Mr Kowalski instituted the proceedings for an ulterior purpose.
Q PERSISTENTLY INSTITUTES PROCEEDINGS
Section 39(1) of the Act refers to vexatious proceedings being instituted persistently.
The question whether vexatious proceedings have been instituted persistently involves a matter of judgment turning on questions of circumstance and degree.[434] The term “persistently” suggests determination and continuing in the face of difficulty or opposition with a degree of stubbornness.[435]
[434] Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28 at 35 per Perry J.
[435] Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 per Roden J.
Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted, the extent to which they represent attempts to re-litigate issues already conclusively determined and the extent of extravagant allegations which are not substantiated.[436]
[436] Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 at [21] per Thomas, Keith and Blanchard JJ.
I have concluded that Mr Kowalski instituted 63 vexatious proceedings over the course of 12 years. He instituted those proceedings in the Workers Compensation Tribunal, the Disciplinary Tribunal, the Magistrates Court, the District Court and this Court. In many of those cases, he instituted appeals from the first instance decision. In several of those cases, Mr Kowalski sought to re‑litigate issues already conclusively determined against him. In several of those cases, Mr Kowalski made extravagant allegations which were not substantiated.
I accept that Mr Kowalski genuinely feels grievances concerning Mitsubishi’s reliance upon the Heads of Agreement to preclude any workers compensation claims by him which he considers to be in contravention of section 119 of the 1986 Act, Mitsubishi Superannuation’s refusal to pay him a total and permanent disability benefit; RJ Cole & Partners’ conduct of his claim in the District Court; and the amounts charged by RJ Cole & Partners, Stanley & Partners and Lieschke & Weatherill and monies and trust monies applied or appropriated by those firms towards their fees. This is not to conclude that Mr Kowalski’s grievances entail that he was entitled to the relief which he sought against those parties. Nevertheless, in each case, either the Attorney‑General has conceded or have I found that Mr Kowalski’s initial claims against four of those parties were not instituted without reasonable ground.
However, after Mr Kowalski was met with binding decisions by courts or tribunals dismissing or rejecting his primary claims, he continued to litigate the same or related issues time and time again against those parties in circumstances which rendered that litigation vexatious.
He expanded the litigation to encompass solicitors, counsel and advocates for those primary parties and in many such cases made extravagant allegations which were not substantiated. The pursuit of litigation against his primary and secondary opponents has become an obsession and a compulsion.
Taking into account all of the circumstances, I find that Mr Kowalski persistently instituted vexatious proceedings.
R DISCRETION
My conclusion that Mr Kowalski has persistently instituted vexatious proceedings merely enlivens, but does not dictate the exercise of, a discretion under section 39 of the Act whether to make an order prohibiting him from instituting further proceedings without permission of the Court and/or staying proceedings already instituted by him. Whether I should exercise that discretion raises its own considerations.
An order under section 39 of the Act is an extreme remedy and is to be considered against the background of the fundamental principle that a person generally has a right to seek from the courts remedies for legal wrongs.[437]
[437] Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at [51] per Sackville J.
Based upon Mr Kowalski’s conduct to date, unless an order is made under section 39(1)(a), it is almost certain that he will continue to institute future proceedings and it is likely that he will institute future proceedings which are vexatious. Unless an order is made under section 39(1)(b), it is almost certain that Mr Kowalski will prosecute proceedings which he has already instituted which are vexatious.
It is a factor in favour of the exercise of discretion that, after Mr Kowalski was met with binding decisions by courts or tribunals dismissing or rejecting his claims, he continued to engage in litigation time and again against the relevant parties in circumstances which rendered that litigation vexatious. He expanded the litigation to encompass solicitors, counsel and advocates for those primary parties. In many cases he made extravagant and unfounded allegations. It is a factor in favour of the exercise of the discretion that, in the absence of an order, unnecessary time and expense is likely to be incurred by Mr Kowalski’s opponents in future litigation which is vexatious. In addition, the resources of the courts which are funded by the public are likely to be used for the purposes of vexatious litigation, being scarce resources otherwise devoted to other causes. It is a factor in favour of exercise of the discretion that there are several proceedings still on foot which I have concluded are vexatious.

On my findings, Mr Kowalski has instituted vexatious proceedings over the course of more than a decade. He has instituted vexatious proceedings after April 2005 when Bleby J made an order under section 39 of the Act on the application of Mitsubishi and after April 2011 when Stone J made an order under Order 21 of the Federal Court Rules 1979 (Cth). While I have not relied in any way upon those decisions and observe that Mr Kowalski contends that they were wrongly made, the fact remains that Mr Kowalski has, on my findings, persisted with the institution of vexatious proceedings not controlled by those orders notwithstanding that the making of the orders should have had a salutary effect.
Mr Kowalski has not only instituted vexatious proceedings at first instance, but has instituted numerous appeals and set aside applications which I have also found to be vexatious.
Taking into account all of the circumstances, I am satisfied that I should exercise my discretion to make orders under section 39(1)(a) and (b) of the Act.
S CONCLUSION
Mr Kowalski has persistently instituted vexatious proceedings within the meaning of section 39 of the Act. I am satisfied that I should exercise my discretion to make orders prohibiting Mr Kowalski from instituting further proceedings without the permission of the Court and staying existing proceedings which have been instituted by him.
I will hear the parties as to the precise orders to be made.
ANNEXURE
UNDERLYING PROCEEDINGS

Number Forum Action No Type Date begun Date ended Judicial Officer Rel Court? Proceeding Instituted? Without reasonable ground? Ulterior
Purpose? Vexatious?

M1 District Court 2760/90 Application to set aside 18.11.96 23.12.96 Judge Lee Yes Yes Not proved No Not proved

M2 WCT 3009/09 Notice of dispute mental breakdown 19.11.96 19.2.97 DP Thompson Yes Yes No No No

S1 LPDT 8/97 Charge against Mr Bourne 10.12.97 21.10.99 Withdrawn No Yes Not proved Not proved Not proved

M3 WCT 4163/99 App to set aside 3.11.98 consent orders 23.11.99 14.8.01 DP McCouaig Yes Yes No No

M4 WCT 4163/99 Cross appeal 24.2.00 15.8.00 Full Bench Yes Yes Yes Yes

M5 WCAT 1010/00 App to set aside 5.11.98 consent orders 26.10.00 19.8.02 Full Bench Yes Yes No No

M6 WCT 8059/00
Notice of dispute back injury
29.12.00 15.3.01
6.4.01 DP Thomson Yes Yes Not proved No Not proved

M7 WCT 4174/98
4529/98
4961/98 App to set aside 28.10.98 consent orders 9.1.01 19.8.02 Full Bench Yes Yes No No

M8 District Court 957/96 App for further discovery 15.3.01 3.7.01 Master Rice Yes No Not proved Not proved No

M9 WCT 2228/01 Notice of dispute emotional distress 30.3.01 19.8.02 Full Bench Yes Yes Not proved Not proved

M10 WCT 8059/00 Appeal against M6 17.4.01 19.8.02 Full Bench Yes Yes Not proved Not proved

M11 WCT 8059/00 Application for stay pending appeal 17.4.01 28.9.01 Full Bench Yes No Not proved No

M12 District Court 957/96 Appeal against M8 9.7.01 13.9.01 Judge Lowrie Yes Yes Not proved Not proved

M13 WCT 5879/01 Notice of dispute deemed decision via CO Richer 16.8.01 19.8.02 Full Bench Yes Yes No No

M14 WCT 4163/99 Appeal against M3 August 01 19.8.02 Full Bench Yes Yes No No

M15 WCT 132/02 App exp decision back injury 10.1.02 19.8.02 Full Bench Yes Yes No No

M16 WCT 5871/02 Notice of dispute deemed decision via Full Bench 23.8.02 3.2.03 DP Gilchrist Yes Yes Yes Yes

M17 District Court 957/96 App to set aside examination summons 22.10.02 30.10.02 Master Norman Yes No Yes No No

M18 District Court 957/96 Appeal against M17 5.11.02 4.12.02 Judge Bright Yes Yes Yes Yes

M19 District Court 957/96 App to set aside M17 22.1.03 22.1.03 Master Norman Yes Yes Yes Yes

M20 District Court 957/96 Appeal against M19 4.2.03 5.3.03 Judge Lee Yes Yes Yes Yes

M21 WCT 5871/02 Appeal against M16 February 03 11.9.03 Full Bench Yes Yes Yes Yes

M22 WCT 1539/03 App exp decision back injury 10.3.03 7.5.03 DP McCouaig Yes Yes Yes Not proved Yes

M23 District Court 957/97 Appeal against order for warrant 7.5.03 30.5.03 Judge Smith Yes Yes Yes Yes

M24 WCT 3050/03 App exp decision stress 14.5.03 19.6.03/
11.3.04 PJ Jennings/
Full Bench Yes Yes Yes Not proved Yes

M25 WCT 5956/03 Notice of dispute rehabilitation 2.9.03 25.3.04 PJ Jennings Yes Yes Yes Yes

R1 District Court 957/96 App to disqualify 16.9.03 16.9.03 Master Norman Yes No Yes No

M26 District Court 957/96 App to set aside order for payment 17.9.03 28.11.03 Master Norman Yes Yes Not proved Not proved

R2 District Court 957/96 Appeal against decision to proceed with taxation 22.9.03 12.11.03 Judge Rice Yes Yes Yes Yes

R3 District Court 957/96 Appeal against ruling that costs recoverable even though borne by insurer 1.11.03 14.1.04 Judge Lunn Yes Yes Yes Yes

M27 District Court 957/96 Appeal against M26 4.12.03 19.2.04 Judge Lee Yes Yes Not proved Not proved

M28 WCT 9109/03 Notice of dispute carpal tunnel 31.12.03 16.4.04 DP McCouaig Yes Yes Yes Yes

M29 WCT 5956/03 Appeal against M25 25.3.04 25.6.04 Full Bench Yes Yes Yes Yes

A1 LPDT 3/04 Charge against Ms Layton QC 13.4.04 11.6.04 Panel No Yes Yes Not proved No

A2 LPDT 4/04 Charge against Mr Fountain 13.4.04 11.6.04 Panel No Yes Yes Not proved No

M30 WCT 9109/03 Appeal against M28 May 04 25.6.04 Full Bench Yes Yes Yes Yes

M31 WCT 9109/03 App to disqualify 8.6.04 8.6.04 Full Bench Yes No Not proved No

M32 Supreme Court 297/04 Appeal against refusal of Master to state a case 9.7.04 8.9.04 Full Court Yes Yes Not proved Not proved

A3 LPDT 9/04 Charge against Ms Christie 19.8.04 8.2.05 Panel No Yes Yes Not proved No

A4 LPDT 10/04 Charge against Mr White 16.10.04 21.3.04 Panel No Yes Yes Not proved No

A5 LPDT 13/04 Charge against Ms Layton QC 19.11.04 22.2.05 Panel No Yes Yes Not proved No

A6 LPDT 14/04 Charge against Mr Fountain 22.11.04 22.2.05 Panel No Yes Yes Not proved No

A7 LPDT 2/05 Charge against Ms Layton QC 26.2.05 15.12.05 Panel No Yes Yes Not proved No

R4 LPDT 6/05 Charge against Mr Cole etc 3.5.05 17.6.05 Panel No Yes Yes No

A8 LPDT 4/05 Charge against Mr Forrest 20.6.05 25.10.07 Panel No Yes Yes Not proved No

R5 LPDT 6/05 Charge against Mr Cole etc 25.7.05 17.6.05 Panel No Yes Not proved No

A9 LPDT 7/05 Charge against Mr Voss 17.9.05 29.5.08 Panel Yes Yes Yes Not proved Yes

A10 LPDT 9/05 Charge against Mr Soulio 10.10.05 28.7.09 Panel Yes Yes Yes Not proved Yes

M33 Supreme Court 1159/05 Summons for judicial review against CEO Workcover 16.9.05 19.12.05 Duggan J Yes Yes Yes Not proved Yes

M34 Supreme Court 1159/05 Appeal against M33 22.12.05 28.4.06 Full Court Yes Yes Yes Yes

A11 Supreme Court 1639/05 Appeal against A7 22.12.05 3.2.06 Besanko J Yes Yes Yes Not proved Yes

A12 Supreme Court 1639/05 Appeal against refusal of leave under s 39 to appeal against A7 15.5.06 21.9.06 Perry J Yes Yes Yes Not proved Yes

M35 Supreme Court LI4/06 App for leave to issue judicial review against WCT 22.3.06 24.8.06 White J on appeal from Master Lunn Yes No Yes No

M36 Supreme Court 468/06 App under s 39 for leave to issue action against Mitsubishi Super 19.4.06 19.4.06/
1.6.06 Doyle CJ on appeal from Master Lunn Yes No Not proved No No

M37 Supreme Court 297/04 App to lift stay of 4612/04 in WCT imposed on 19.5.05 1.5.06 26.5.06 Master Lunn Yes Yes Yes Yes

M38 Supreme Court 297/04 App for stay of 19.4.05 order to permit institution of proceedings against Mitsubishi 23.5.06 2.6.06 Vanstone J Yes No Yes No

M39 Supreme Court 297/04 App for leave to appeal against M38 15.6.06 29.6.06 Vanstone J Yes Yes Yes Yes

R6 District Court 957/96 App for review of interim allocatur 10.10.06 21.3.07 Judge Shaw Yes Yes Yes Yes

R7 District Court 957/96 App to set aside 21.3.02 judgment 20.11.06 21.3.07 Judge Shaw Yes Yes Yes Yes

M40 District Court 957/96 App for costs of action 12.12.06 21.3.07 Judge Shaw Yes Yes Yes Yes

M41 Supreme Court 468/06 App for extension of time to appeal against M35 9.2.07 21.2.07 Vanstone J Yes Yes Yes Yes

L1 LPDT 6/07 Charge against Mr Dolphin 18.7.07 10.6.10 Panel Yes Yes Yes Yes Yes

R8 Supreme Court 1563/96 App for order to refund of monies 24.7.07 15.10.07 Master Lunn Yes Yes Yes Yes

A13 LPDT 7/07 Charge against Mr Hanus 8.8.07 25.5.11 Panel Yes Yes Yes Not proved Yes

A14 LPDT 297/04 Charge against Mr Fountain 23.9.07 Yes Yes Yes Not proved Yes

R9 LPDT Charge against Mr Cole 15.10.07 Yes Yes Not Proved Not proved Not proved

A15 LPDT Charge against Ms Halkett 9.11.07 Yes Yes Yes Not proved Yes

R10 LPDT Charge against Mr Cole and Mr Sim 15.11.07 Yes Yes Not proved Not proved Not proved

R11 Supreme Court 1563/96 App to set aside 22.7.05 order striking out app to tax costs 25.1.08 31.3.08 Master Lunn Yes No No No

A16 LPDT Charge against Mr Dwyer 28.2.08 Yes Yes Not proved Not proved Not proved

A17 LPDT 15/08 Charge against Ms Carabelas 14.5.08 Yes Yes Yes Not proved Yes

R12 District Court 957/96 App to set aside 21.3.02 judgment 26.5.08 4.9.08 Master Norman Yes Yes Yes Yes

A18 LPDT 14/08 Charge against Mr Wallace 23.6.08 Yes Yes Not proved Not proved Not proved

A19 LPDT 11/08 Charge against Mr Voss and Mr White 3.7.08 9.12.09 President Morcombe QC* Yes Yes Yes Not proved Yes

A20 LPDT Charge against Ms Schammer 20.7.08 Yes Yes Yes Not proved Yes

A21 LPDT 19/08 Charge against Mr Topperwein 15.8.08 7.11.08 President Morcombe QC* Yes Yes Yes Not proved Yes

R13 District Court 957/09 Appeal against R12 5.9.08 3.12.08 Judge Nicholson Yes Yes Not proved Not proved

A22 LPDT Charge against Mr Morcombe QC 7.11.08 Yes Yes Yes Not proved Yes

A23 LPDT 1/09 Charge against Mr Camilos 23.1.09 Yes Yes Yes Not proved Yes

A24 LPDT Charge against Mr Wallace 5.5.09 Yes Yes Not proved Not proved Not proved

L2 LPDT Charge against Mr Dolphin 16.1.10 Yes Yes Yes Not proved Yes

A25 LPDT 1/10 Charge against Mr Schatz 21.1.10 Yes Yes Yes Not proved Yes

A26 LPDT 3/10 Charge against Mr Warren 4.2.10 Yes Yes Yes Not proved Yes

A27 LPDT 5/10 Charge against Ms Vuksan 24.2.10 Yes Yes Yes Not proved Yes

A28 LPDT Charge against Mr Stanley QC 16.4.10 Yes Yes Yes Not proved Yes

A29 LPDT Charge against Mr Clarke 20.4.10 Yes Yes Yes Not proved Yes

A30 LPDT Charge against Mr Camatta 4.5.10 Yes Yes Yes Not proved Yes

S2 LPDT Charge against Mr Bourne 8.5.10 Yes Yes Yes Yes Yes

A31 LPDT Charge against Ms Heath 16.6.10 Yes Yes Yes Not proved Yes

A32 LPDT Charge against Mr Doyle 2.3.11 Yes Yes Not proved Not proved Not proved

A33 LPDT Charge against Ms Nelson QC 3.3.11 Yes Yes Yes Not proved Yes

R14 Industrial Relations Court 1352/11 Claim for return of monies paid
to RJ Cole & Partners 25.3.11 23.8.11 Judge Hannon Yes Yes Not proved Not proved Not proved

S3 Industrial Relations Court 1114/11 Claim for return of monies paid
to Stanley & Partners 7.3.11 23.8.11 Judge Hannon Yes Yes Not proved Not proved Not proved

R15 Industrial Relations Court 1352/11 Appeal against R12 25.8.11 Yes Yes Not proved Not proved Not proved

S4 Industrial Relations Court 1114/11 Appeal against S3 25.8.11 Yes Yes Not proved Not proved Not proved

S5 Magistrates Court 9855/11 Information against Mr Bourne 30.8.11 7.10.11 Dr Cannon DCM Yes Yes Yes Yes Yes

R16 Magistrates Court 4477/11 Information against Mr Cole etc 21.9.11 20.12.11 Mr Bennett SM Yes Yes Yes Yes Yes

L3 Magistrates Court Information against Mr Weatherill 27.9.11 7.10.11 Dr Cannon DCM Yes Yes Yes Yes Yes

S6 Supreme Court 1823/11 Appeal against S5 14.11.11 13.1.12 Kourakis J Yes Yes Yes Yes Yes

R17 Supreme Court 5/12 Appeal against R16 3.1.12 2.3.12 Kelly J Yes Yes Yes Yes Yes

R18 Magistrates Court 216/12 Information against Mr Cole etc 3.1.12 11.4.12 Mr Ackland SM Yes Yes Yes Yes Yes

A34 LPDT Charge against Mr Coppola 8.2.12 Yes Yes Yes Not proved Yes

S7 Supreme Court 1823/11 App for leave to appeal against S6 20.2.12 20.2.12 Kourakis J Yes Yes Yes Yes Yes

S8 Supreme Court 247/95 App for extension of time to appeal against 25.7.97 dismissal of set aside application/appeal 1.3.12 9.3.12 David J Yes Yes Yes No Yes

S9 Supreme Court 247/95 Appeal against S8 13.3.12 29.5.12 Registrar under direction of David J Yes Yes Yes No Yes

S10 LPDT 247/95 Charge against Mr Bourne 4.4.12 Yes Yes Yes Yes Yes

M42 Supreme Court 892/96 App to set aside 21.11.96 judgment and 15.7.97 appeal orders 5.4.12 13.4.12 Registrar under direction of a Judge Yes Yes Yes Yes

R19 Supreme Court 892/96 Appeal against R18 13.4.12 Yes Yes Yes Yes Yes

A35 LPDT Charge against Registrar Roder 29.5.12 Yes Yes Yes Not proved Yes

Number	Forum	Action No	Type	Date begun	Date ended	Judicial Officer	Rel Court?	Proceeding Instituted?	Without reasonable ground?	Ulterior Purpose?	Vexatious?
M1	District Court	2760/90	Application to set aside	18.11.96	23.12.96	Judge Lee	Yes	Yes	Not proved	No	Not proved
M2	WCT	3009/09	Notice of dispute mental breakdown	19.11.96	19.2.97	DP Thompson	Yes	Yes	No	No	No
S1	LPDT	8/97	Charge against Mr Bourne	10.12.97	21.10.99	Withdrawn	No	Yes	Not proved	Not proved	Not proved
M3	WCT	4163/99	App to set aside 3.11.98 consent orders	23.11.99	14.8.01	DP McCouaig	Yes	Yes	No	No
M4	WCT	4163/99	Cross appeal	24.2.00	15.8.00	Full Bench	Yes	Yes	Yes	Yes
M5	WCAT	1010/00	App to set aside 5.11.98 consent orders	26.10.00	19.8.02	Full Bench	Yes	Yes	No	No
M6	WCT	8059/00	Notice of dispute back injury	29.12.00	15.3.01 6.4.01	DP Thomson	Yes	Yes	Not proved	No	Not proved
M7	WCT	4174/98 4529/98 4961/98	App to set aside 28.10.98 consent orders	9.1.01	19.8.02	Full Bench	Yes	Yes	No	No
M8	District Court	957/96	App for further discovery	15.3.01	3.7.01	Master Rice	Yes	No	Not proved	Not proved	No
M9	WCT	2228/01	Notice of dispute emotional distress	30.3.01	19.8.02	Full Bench	Yes	Yes	Not proved	Not proved
M10	WCT	8059/00	Appeal against M6	17.4.01	19.8.02	Full Bench	Yes	Yes	Not proved	Not proved
M11	WCT	8059/00	Application for stay pending appeal	17.4.01	28.9.01	Full Bench	Yes	No	Not proved	No
M12	District Court	957/96	Appeal against M8	9.7.01	13.9.01	Judge Lowrie	Yes	Yes	Not proved	Not proved
M13	WCT	5879/01	Notice of dispute deemed decision via CO Richer	16.8.01	19.8.02	Full Bench	Yes	Yes	No	No
M14	WCT	4163/99	Appeal against M3	August 01	19.8.02	Full Bench	Yes	Yes	No	No
M15	WCT	132/02	App exp decision back injury	10.1.02	19.8.02	Full Bench	Yes	Yes	No	No
M16	WCT	5871/02	Notice of dispute deemed decision via Full Bench	23.8.02	3.2.03	DP Gilchrist	Yes	Yes	Yes	Yes
M17	District Court	957/96	App to set aside examination summons	22.10.02	30.10.02	Master Norman	Yes	No	Yes	No	No
M18	District Court	957/96	Appeal against M17	5.11.02	4.12.02	Judge Bright	Yes	Yes	Yes	Yes
M19	District Court	957/96	App to set aside M17	22.1.03	22.1.03	Master Norman	Yes	Yes	Yes	Yes
M20	District Court	957/96	Appeal against M19	4.2.03	5.3.03	Judge Lee	Yes	Yes	Yes	Yes
M21	WCT	5871/02	Appeal against M16	February 03	11.9.03	Full Bench	Yes	Yes	Yes	Yes
M22	WCT	1539/03	App exp decision back injury	10.3.03	7.5.03	DP McCouaig	Yes	Yes	Yes	Not proved	Yes
M23	District Court	957/97	Appeal against order for warrant	7.5.03	30.5.03	Judge Smith	Yes	Yes	Yes	Yes
M24	WCT	3050/03	App exp decision stress	14.5.03	19.6.03/ 11.3.04	PJ Jennings/ Full Bench	Yes	Yes	Yes	Not proved	Yes
M25	WCT	5956/03	Notice of dispute rehabilitation	2.9.03	25.3.04	PJ Jennings	Yes	Yes	Yes	Yes
R1	District Court	957/96	App to disqualify	16.9.03	16.9.03	Master Norman	Yes	No	Yes	No
M26	District Court	957/96	App to set aside order for payment	17.9.03	28.11.03	Master Norman	Yes	Yes	Not proved	Not proved
R2	District Court	957/96	Appeal against decision to proceed with taxation	22.9.03	12.11.03	Judge Rice	Yes	Yes	Yes	Yes
R3	District Court	957/96	Appeal against ruling that costs recoverable even though borne by insurer	1.11.03	14.1.04	Judge Lunn	Yes	Yes	Yes	Yes
M27	District Court	957/96	Appeal against M26	4.12.03	19.2.04	Judge Lee	Yes	Yes	Not proved	Not proved
M28	WCT	9109/03	Notice of dispute carpal tunnel	31.12.03	16.4.04	DP McCouaig	Yes	Yes	Yes	Yes
M29	WCT	5956/03	Appeal against M25	25.3.04	25.6.04	Full Bench	Yes	Yes	Yes	Yes
A1	LPDT	3/04	Charge against Ms Layton QC	13.4.04	11.6.04	Panel	No	Yes	Yes	Not proved	No
A2	LPDT	4/04	Charge against Mr Fountain	13.4.04	11.6.04	Panel	No	Yes	Yes	Not proved	No
M30	WCT	9109/03	Appeal against M28	May 04	25.6.04	Full Bench	Yes	Yes	Yes	Yes
M31	WCT	9109/03	App to disqualify	8.6.04	8.6.04	Full Bench	Yes	No	Not proved	No
M32	Supreme Court	297/04	Appeal against refusal of Master to state a case	9.7.04	8.9.04	Full Court	Yes	Yes	Not proved	Not proved
A3	LPDT	9/04	Charge against Ms Christie	19.8.04	8.2.05	Panel	No	Yes	Yes	Not proved	No
A4	LPDT	10/04	Charge against Mr White	16.10.04	21.3.04	Panel	No	Yes	Yes	Not proved	No
A5	LPDT	13/04	Charge against Ms Layton QC	19.11.04	22.2.05	Panel	No	Yes	Yes	Not proved	No
A6	LPDT	14/04	Charge against Mr Fountain	22.11.04	22.2.05	Panel	No	Yes	Yes	Not proved	No
A7	LPDT	2/05	Charge against Ms Layton QC	26.2.05	15.12.05	Panel	No	Yes	Yes	Not proved	No
R4	LPDT	6/05	Charge against Mr Cole etc	3.5.05	17.6.05	Panel	No	Yes	Yes	No
A8	LPDT	4/05	Charge against Mr Forrest	20.6.05	25.10.07	Panel	No	Yes	Yes	Not proved	No
R5	LPDT	6/05	Charge against Mr Cole etc	25.7.05	17.6.05	Panel	No	Yes	Not proved	No
A9	LPDT	7/05	Charge against Mr Voss	17.9.05	29.5.08	Panel	Yes	Yes	Yes	Not proved	Yes
A10	LPDT	9/05	Charge against Mr Soulio	10.10.05	28.7.09	Panel	Yes	Yes	Yes	Not proved	Yes
M33	Supreme Court	1159/05	Summons for judicial review against CEO Workcover	16.9.05	19.12.05	Duggan J	Yes	Yes	Yes	Not proved	Yes
M34	Supreme Court	1159/05	Appeal against M33	22.12.05	28.4.06	Full Court	Yes	Yes	Yes	Yes
A11	Supreme Court	1639/05	Appeal against A7	22.12.05	3.2.06	Besanko J	Yes	Yes	Yes	Not proved	Yes
A12	Supreme Court	1639/05	Appeal against refusal of leave under s 39 to appeal against A7	15.5.06	21.9.06	Perry J	Yes	Yes	Yes	Not proved	Yes
M35	Supreme Court	LI4/06	App for leave to issue judicial review against WCT	22.3.06	24.8.06	White J on appeal from Master Lunn	Yes	No	Yes	No
M36	Supreme Court	468/06	App under s 39 for leave to issue action against Mitsubishi Super	19.4.06	19.4.06/ 1.6.06	Doyle CJ on appeal from Master Lunn	Yes	No	Not proved	No	No
M37	Supreme Court	297/04	App to lift stay of 4612/04 in WCT imposed on 19.5.05	1.5.06	26.5.06	Master Lunn	Yes	Yes	Yes	Yes
M38	Supreme Court	297/04	App for stay of 19.4.05 order to permit institution of proceedings against Mitsubishi	23.5.06	2.6.06	Vanstone J	Yes	No	Yes	No
M39	Supreme Court	297/04	App for leave to appeal against M38	15.6.06	29.6.06	Vanstone J	Yes	Yes	Yes	Yes
R6	District Court	957/96	App for review of interim allocatur	10.10.06	21.3.07	Judge Shaw	Yes	Yes	Yes	Yes
R7	District Court	957/96	App to set aside 21.3.02 judgment	20.11.06	21.3.07	Judge Shaw	Yes	Yes	Yes	Yes
M40	District Court	957/96	App for costs of action	12.12.06	21.3.07	Judge Shaw	Yes	Yes	Yes	Yes
M41	Supreme Court	468/06	App for extension of time to appeal against M35	9.2.07	21.2.07	Vanstone J	Yes	Yes	Yes	Yes
L1	LPDT	6/07	Charge against Mr Dolphin	18.7.07	10.6.10	Panel	Yes	Yes	Yes	Yes	Yes
R8	Supreme Court	1563/96	App for order to refund of monies	24.7.07	15.10.07	Master Lunn	Yes	Yes	Yes	Yes
A13	LPDT	7/07	Charge against Mr Hanus	8.8.07	25.5.11	Panel	Yes	Yes	Yes	Not proved	Yes
A14	LPDT	297/04	Charge against Mr Fountain	23.9.07	Yes	Yes	Yes	Not proved	Yes
R9	LPDT	Charge against Mr Cole	15.10.07	Yes	Yes	Not Proved	Not proved	Not proved
A15	LPDT	Charge against Ms Halkett	9.11.07	Yes	Yes	Yes	Not proved	Yes
R10	LPDT	Charge against Mr Cole and Mr Sim	15.11.07	Yes	Yes	Not proved	Not proved	Not proved
R11	Supreme Court	1563/96	App to set aside 22.7.05 order striking out app to tax costs	25.1.08	31.3.08	Master Lunn	Yes	No	No	No
A16	LPDT	Charge against Mr Dwyer	28.2.08	Yes	Yes	Not proved	Not proved	Not proved
A17	LPDT	15/08	Charge against Ms Carabelas	14.5.08	Yes	Yes	Yes	Not proved	Yes
R12	District Court	957/96	App to set aside 21.3.02 judgment	26.5.08	4.9.08	Master Norman	Yes	Yes	Yes	Yes
A18	LPDT	14/08	Charge against Mr Wallace	23.6.08	Yes	Yes	Not proved	Not proved	Not proved
A19	LPDT	11/08	Charge against Mr Voss and Mr White	3.7.08	9.12.09	President Morcombe QC*	Yes	Yes	Yes	Not proved	Yes
A20	LPDT	Charge against Ms Schammer	20.7.08	Yes	Yes	Yes	Not proved	Yes
A21	LPDT	19/08	Charge against Mr Topperwein	15.8.08	7.11.08	President Morcombe QC*	Yes	Yes	Yes	Not proved	Yes
R13	District Court	957/09	Appeal against R12	5.9.08	3.12.08	Judge Nicholson	Yes	Yes	Not proved	Not proved
A22	LPDT	Charge against Mr Morcombe QC	7.11.08	Yes	Yes	Yes	Not proved	Yes
A23	LPDT	1/09	Charge against Mr Camilos	23.1.09	Yes	Yes	Yes	Not proved	Yes
A24	LPDT	Charge against Mr Wallace	5.5.09	Yes	Yes	Not proved	Not proved	Not proved
L2	LPDT	Charge against Mr Dolphin	16.1.10	Yes	Yes	Yes	Not proved	Yes
A25	LPDT	1/10	Charge against Mr Schatz	21.1.10	Yes	Yes	Yes	Not proved	Yes
A26	LPDT	3/10	Charge against Mr Warren	4.2.10	Yes	Yes	Yes	Not proved	Yes
A27	LPDT	5/10	Charge against Ms Vuksan	24.2.10	Yes	Yes	Yes	Not proved	Yes
A28	LPDT	Charge against Mr Stanley QC	16.4.10	Yes	Yes	Yes	Not proved	Yes
A29	LPDT	Charge against Mr Clarke	20.4.10	Yes	Yes	Yes	Not proved	Yes
A30	LPDT	Charge against Mr Camatta	4.5.10	Yes	Yes	Yes	Not proved	Yes
S2	LPDT	Charge against Mr Bourne	8.5.10	Yes	Yes	Yes	Yes	Yes
A31	LPDT	Charge against Ms Heath	16.6.10	Yes	Yes	Yes	Not proved	Yes
A32	LPDT	Charge against Mr Doyle	2.3.11	Yes	Yes	Not proved	Not proved	Not proved
A33	LPDT	Charge against Ms Nelson QC	3.3.11	Yes	Yes	Yes	Not proved	Yes
R14	Industrial Relations Court	1352/11	Claim for return of monies paid to RJ Cole & Partners	25.3.11	23.8.11	Judge Hannon	Yes	Yes	Not proved	Not proved	Not proved
S3	Industrial Relations Court	1114/11	Claim for return of monies paid to Stanley & Partners	7.3.11	23.8.11	Judge Hannon	Yes	Yes	Not proved	Not proved	Not proved
R15	Industrial Relations Court	1352/11	Appeal against R12	25.8.11	Yes	Yes	Not proved	Not proved	Not proved
S4	Industrial Relations Court	1114/11	Appeal against S3	25.8.11	Yes	Yes	Not proved	Not proved	Not proved
S5	Magistrates Court	9855/11	Information against Mr Bourne	30.8.11	7.10.11	Dr Cannon DCM	Yes	Yes	Yes	Yes	Yes
R16	Magistrates Court	4477/11	Information against Mr Cole etc	21.9.11	20.12.11	Mr Bennett SM	Yes	Yes	Yes	Yes	Yes
L3	Magistrates Court	Information against Mr Weatherill	27.9.11	7.10.11	Dr Cannon DCM	Yes	Yes	Yes	Yes	Yes
S6	Supreme Court	1823/11	Appeal against S5	14.11.11	13.1.12	Kourakis J	Yes	Yes	Yes	Yes	Yes
R17	Supreme Court	5/12	Appeal against R16	3.1.12	2.3.12	Kelly J	Yes	Yes	Yes	Yes	Yes
R18	Magistrates Court	216/12	Information against Mr Cole etc	3.1.12	11.4.12	Mr Ackland SM	Yes	Yes	Yes	Yes	Yes
A34	LPDT	Charge against Mr Coppola	8.2.12	Yes	Yes	Yes	Not proved	Yes
S7	Supreme Court	1823/11	App for leave to appeal against S6	20.2.12	20.2.12	Kourakis J	Yes	Yes	Yes	Yes	Yes
S8	Supreme Court	247/95	App for extension of time to appeal against 25.7.97 dismissal of set aside application/appeal	1.3.12	9.3.12	David J	Yes	Yes	Yes	No	Yes
S9	Supreme Court	247/95	Appeal against S8	13.3.12	29.5.12	Registrar under direction of David J	Yes	Yes	Yes	No	Yes
S10	LPDT	247/95	Charge against Mr Bourne	4.4.12	Yes	Yes	Yes	Yes	Yes
M42	Supreme Court	892/96	App to set aside 21.11.96 judgment and 15.7.97 appeal orders	5.4.12	13.4.12	Registrar under direction of a Judge	Yes	Yes	Yes	Yes
R19	Supreme Court	892/96	Appeal against R18	13.4.12	Yes	Yes	Yes	Yes	Yes
A35	LPDT	Charge against Registrar Roder	29.5.12	Yes	Yes	Yes	Not proved	Yes