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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Attorney-General v Kowalski [2014] SASC 1
Case
[2014] SASC 1
Decision Date
CaseChat Overview and Summary
The case of Attorney-General v Kowalski involved Mr Kowalski, who was seeking to challenge the decisions of various tribunals and courts that had dismissed his claims for workers' compensation and disciplinary proceedings against certain individuals. The legal issues before the court centred around the principles of estoppel by judgment, specifically res judicata, cause of action estoppel, and issue estoppel, as well as the procedural aspects of vexatious litigants and proceedings. The court had to determine whether Mr Kowalski's claims were barred by previous judgments and whether the individuals against whom he had filed charges were estopped from challenging his claims.
The court examined the various judgments and orders that had been made in previous proceedings involving Mr Kowalski. It found that Mr Kowalski's claims were indeed barred by the principle of res judicata, as the issues he sought to raise had already been determined by the courts and tribunals in previous proceedings. The court also found that the individuals against whom Mr Kowalski had filed charges were estopped from challenging his claims, as their conduct in previous proceedings had led to the determination of the issues in his favour. The court further held that the principle of anshun estoppel applied, as the previous judgments had determined the matters in issue between the parties.
The court's reasoning was based on the established principles of estoppel by judgment, which prevent parties from relitigating issues that have already been determined by a court or tribunal with jurisdiction. The court found that the previous judgments and orders were binding on the parties and that Mr Kowalski's claims were accordingly barred. The court also held that the individuals against whom Mr Kowalski had filed charges were estopped from challenging his claims, as their conduct in previous proceedings had led to the determination of the issues in his favour.
The final orders of the court were that Mr Kowalski's claims against the individuals were dismissed, and that the individuals were estopped from challenging his claims. The court also found that the principle of anshun estoppel applied, and that the previous judgments and orders were binding on the parties. The court further held that Mr Kowalski's conduct in bringing vexatious proceedings was an abuse of the court's process, and that he should be restrained from bringing further proceedings without the leave of the court.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 PRINCIPLESThe 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.
Evidence
Evidence Before The Court
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]”.
Decision
Reasons for decision
BLUE J
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