Attorney-General v Kowalski (No 3) - [2015] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ATTORNEY-GENERAL v KOWALSKI (NO 3)
[2015] SASC 154
Judgment of The Honourable Justice Blue
1 October 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - GENERALLY
The defendant applies under section 39 of the Supreme Court Act 1935 for permission to institute an appeal to the Supreme Court against decisions of the Legal Practitioners Disciplinary Tribunal dismissing two charges laid by the defendant against legal practitioners.
Held:
1. The proposed grounds of appeal are not reasonably arguable (at [23], [26]-[33]).
2. The defendant’s application is refused (at [37]).
Legal Practitioners Act 1981 (SA) s 41(2); Supreme Court Act 1935 (SA) s 39(1)(a); Workers Compensation Act 1971 (SA); Workers Compensation Act 1986 (SA), referred to.
Attorney-General v Kowalski [2014] SASC 1, discussed.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, considered.

ATTORNEY-GENERAL v KOWALSKI (NO 3)
[2015] SASC 154
BLUE J:

I previously made an order under section 39(1)(a) of the Supreme Court Act 1935 (SA) prohibiting Kasimir Kowalski from instituting further proceedings without permission of the Court.[1]
[1] Attorney-General v Kowalski[2014] SASC 1.
Mr Kowalski seeks permission under section 39(1)(a) to institute an appeal (the proposed appeal) in this Court against decisions of the Legal Practitioners Disciplinary Tribunal dismissing a charge against Russell John Cole and a charge against Russell John Cole and William Andrew Sim.
The purpose of the requirement for a person subject to an order under section 39(1)(a) prohibiting the institution of proceedings without permission of the Court is to prevent his or her instituting future proceedings that are “vexatious” within the meaning of the Act. Effectively, this means that permission should be granted to institute a proceeding that is tenable as a matter of fact and law (not instituted without reasonable ground) and is not instituted for an ulterior purpose.
Background
Mr Cole and Mr Sim are partners in the law firm RJ Cole & Partners (the Firm).
The Firm acted for Mr Kowalski inter alia in actions in the District Court against Mitsubishi Motors Australia Limited (Mitsubishi) for damages for negligence in relation to a back injury and an eye injury.
On 30 March 1992, the Firm issued an invoice to Mr Kowalski for $18,634.66 in relation to his back injury.
In August 1992, Mr Kowalski and Mitsubishi agreed to settle all disputes in relation to injuries governed by the Workers Compensation Act 1971 (SA) for $23,000 and injuries governed by the Workers Rehabilitation and Compensation Act 1986 (SA) for $53,000. Mitsubishi paid $23,000 to Mr Kowalski which the Firm deposited into its trust account. The Firm transferred $18,634.66 of those trust monies to its general account in payment of its March 1992 invoice and $483.79 in payment of invoices in relation to Mr Kowalski’s eye injury.
WorkCover in due course declined its consent to the settlement in respect of the injuries governed by the 1986 Act. Mitsubishi…

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

Case: [2015] SASC 154
Decision Date: 1 October 2015

CaseChat Overview and Summary

The appeal in Attorney-General v Kowalski (No 3) concerned the decision of the Disciplinary Tribunal to dismiss charges of unprofessional conduct against Mr Cole and Mr Sim, partners in the law firm RJ Cole & Partners, who had acted for Mr Kowalski in a personal injury case. The Tribunal had ruled that Mr Kowalski did not have reasonable grounds for his complaint that the lawyers were withholding $9,118.45 from his trust account. Mr Kowalski sought to appeal this decision, arguing that the Tribunal erred in dismissing his charges and that the presiding member of the Tribunal should have recused himself due to a reasonable apprehension of bias. The Supreme Court of South Australia was tasked with determining whether the Tribunal's decision was correct and whether Mr Kowalski had grounds to appeal.

The court needed to decide whether the Tribunal had erred in dismissing Mr Kowalski's charges of unprofessional conduct against the lawyers. It also needed to determine if the presiding member of the Tribunal should have disqualified himself due to a reasonable apprehension of bias. The court considered whether the Tribunal's conclusion was supported by the evidence and whether Mr Kowalski had reasonable grounds to appeal the decision. Additionally, the court had to assess the validity of Mr Kowalski's argument that the presiding member should have recused himself.

The Supreme Court of South Australia found that the Tribunal had not erred in dismissing Mr Kowalski's charges. The court held that the Tribunal's conclusion was supported by the evidence and that Mr Kowalski did not have reasonable grounds to appeal. The court also found that there was no error in the presiding member's reasons for declining to disqualify himself. Given the full hearing in the Tribunal and the evidence presented, the court concluded that it was not reasonably arguable that the charges were laid without reasonable ground. Therefore, the court declined to grant Mr Kowalski permission to institute the proposed appeal.

In light of the above, the Supreme Court of South Australia dismissed Mr Kowalski's application for leave to appeal the decision of the Disciplinary Tribunal. The court held that the Tribunal had correctly dismissed the charges of unprofessional conduct against Mr Cole and Mr Sim and that there was no reasonable apprehension of bias on the part of the presiding member. As a result, Mr Kowalski was not granted permission to appeal the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

The purpose of the requirement for a person subject to an order under section 39(1)(a) prohibiting the institution of proceedings without permission of the Court is to prevent his or her instituting future proceedings that are “vexatious” within the meaning of the Act. Effectively, this means that permission should be granted to institute a proceeding that is tenable as a matter of fact and law (not instituted without reasonable ground) and is not instituted for an ulterior purpose. Background Mr Cole and Mr Sim are partners in the law firm RJ Cole & Partners (the Firm). The Firm acted for Mr Kowalski inter alia in actions in the District Court against Mitsubishi Motors Australia Limited (Mitsubishi) for damages for negligence in relation to a back injury and an eye injury. On 30 March 1992, the Firm issued an invoice to Mr Kowalski for $18,634.66 in relation to his back injury. In August 1992, Mr Kowalski and Mitsubishi agreed to settle all disputes in relation to injuries governed by the Workers Compensation Act 1971 (SA) for $23,000 and injuries governed by the Workers Rehabilitation and Compensation Act 1986 (SA) for $53,000. Mitsubishi paid $23,000 to Mr Kowalski which the Firm deposited into its trust account. The Firm transferred $18,634.66 of those trust monies to its general account in payment of its March 1992 invoice and $483.79 in payment of invoices in relation to Mr Kowalski’s eye injury. WorkCover in due course declined its consent to the settlement in respect of the injuries governed by the 1986 Act. Mitsubishi asserted that there was a single settlement agreement or two interdependent settlement agreements pursuant to which the entire settlement was conditional on WorkCover’s consent in respect of injuries governed by the 1986 Act. Mitsubishi demanded repayment of the sum of $23,000. In response, the Firm paid the balance of the monies in trust to Mitsubishi together with $10,000 paid to the Firm by Mr Kowalski, leaving a balance that Mitsubishi claimed to be owing of $9,118.45. On 4 December 1995, the Firm transferred that sum from its general account into its trust account. In the meantime, Mr Kowalski had delivered to the Firm a copy of its 30 March 1992 invoice with annotations written by Mr Kowalski. Next to various items there was a dispute on the evidence given before the Tribunal between Mr Kowalski and Mr Sim as to whether this was delivered before 30 September 1992 (on Mr Kowalski’s evidence) or in 1995 (on Mr Sims’ evidence). In October 1998, Mr Kowalski and Mitsubishi entered into a new settlement agreement pursuant to which Mitsubishi agreed to pay $200,000 to Mr Kowalski. Mitsubishi did not thereafter pursue repayment of the sum of $9,118.45. In August 2004, Mr Kowalski filed in the Disciplinary Tribunal a charge of unprofessional conduct against Mr Cole and Mr Sim (action 8 of 2004). He alleged that they were wrongfully withholding $9,118.45 held on his behalf in their trust account. On 1 February 2005, the Disciplinary Tribunal summarily dismissed Mr Kowalski's charge. The Tribunal expressed the following view:The issue ought to be resolved as soon as practicable by the practitioners taking steps to establish their entitlement to the whole or part of the funds. The funds are trust monies and as trustees the practitioners have a legal obligation under the Trustee Act to deal appropriately with the money in order to resolve the issue.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is not reasonably arguable that the Tribunal erred in its conclusion on count 4.Conclusion Mr Kowalski does not have reasonable grounds to appeal against the dismissal of the charges by the Tribunal. Mr Kowalski also complains that the presiding member of the Tribunal ought to have disqualified himself on the ground of reasonable apprehension of bias. The presiding member gave reasons for declining to disqualify himself. No error is disclosed in his reasons or in his conclusion. In my reasons for judgment on the Attorney-General’s application for an order under section 39 of the Act, on the evidence adduced by the Attorney-General I was not satisfied that the charges were laid in the Tribunal without reasonable ground.[5] The position is now different because there has been a full hearing in the Tribunal with documents tendered and Mr Kowalski and the practitioners giving evidence.[5] Attorney-General v Kowalski [2014] SASC 1 at [1322], [1329] I decline to grant permission to Mr Kowalski to institute the proposed appeal.

Ratio Decidendi

Legal Principle Established

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