Attorney-General v Kowalski (No 5) - [2017] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
ATTORNEY-GENERAL v KOWALSKI (NO 5)
[2017] SASC 120
Judgment of The Honourable Justice Blue
15 August 2017
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
Application for permission under section 39 of Supreme Court Act 1935 to issue an investigation summons.
In January 2014 an order was made under section 39 amongst other things staying (subject to exceptions) all existing proceedings instituted by Mr Kowalski in a prescribed court unless permission is granted by the Supreme Court.
In 1992 judgment had been entered in favour of Mr Kowalski against Mitsubishi Motors Australia Limited in the Magistrates Court for $3,000 plus party/party costs.
Mr Kowalski now seeks permission under section 39 to file an interlocutory application in the Magistrates Court action seeking an order under section 4 of the Enforcement of Judgments Act 1991 for investigation of Mitsubishi’s means of satisfying the judgment.
Mitsubishi contends that permission should be refused because Mr Kowalski could only seek to enforce the judgment after making restitution of $9,118 previously received from Mitsubishi; enforcement of the judgment is precluded by a heads of agreement made in 1998; the interlocutory application is an abuse of process; or the interlocutory application is out of time.
Held:
1. Mr Kowalski is not required to make restitution of $9,118 before enforcing the judgment (at [24]).
2. It is reasonably arguable that the heads of agreement does not preclude enforcement of the judgment by Mr Kowalski (at [29]).
3. The proposed application by Mr Kowalski would not be an abuse of process (at [37]).
4. The proposed application is out of time under rule 121(1) of the Magistrates Court Rules and Mr Kowalski does not have sufficient prospects of obtaining an extension of time to justify the grant of permission to bring the application (at [46]).
5. Application for permission refused (at [47]).
Supreme Court Act 1935 (SA) s 39; Workers Compensation Act 1971 (SA) ss 69, 70, 72; Workers Rehabilitation and Compensation Act 1986 (SA); Enforcement of Judgments Act 1991 (SA) ss 4, 5, 45; Magistrates Court (Civil) Rules 1992 s; Magistrates Court (Civil) Rules 2013 r 108, 121; Magistrates Court Act 1991 s 35; Limitations of Actions Act 1936 (SA) s 34; Corporations Act 2001 (Cth) ss 596A, 596B, referred to.
Barrak and Ors & Barakat (2005) 194 FLR 223; Dennehy v Reasonable Endeavours Pty Ltd, in the matter of Dennehy (A Bankrupt) (2003) 130 FCR 494; Edmunds v Pickering (No 4) (2000) 77 SASR 381; Linke v TT Builders Pty Ltd (No 3) (2015) 240 FCR 570; Re Chircan Holdings Pty Ltd (2003) 21 ACLC 29; WT Lamb & Sons v Rider [1948]. 21 ACLC 29, considered.

ATTORNEY-GENERAL v KOWALSKI (NO 5)
[2017] SASC 120
Civil
BLUE J:

This is an application under section 39 of the Supreme Court Act 1935(SA) for permission to file an interlocutory application in the Magistrates Court for an investigation into the means of Mitsubishi Motors Australia Limited (Mitsubishi) of satisfying a judgment.
Background
In 1989 Mr Kowalski brought an action against Mitsubishi in the District Court, subsequently transferred to the Magistrates Court, for damages for negligence causing an eye injury in 1986 (the Magistrates Court action).
In June 1992 judgment was entered by consent in the Magistrates Court action in favour of Mr Kowalski against Mitsubishi for $3,000 plus party/party costs (the judgment).
In August 1992 an order was made by the Industrial Court by consent that amongst other things Mitsubishi pay to Mr Kowalski $2,000 under sections 69, 70 and 72 of the Workers Compensation Act 1971 (SA) (the 1971 Act) in respect of the injury to his right eye and all other injuries suffered before 30 September 1987 (the Industrial Court order). The order incorporated an agreement that Mitsubishi pay $21,000 to Mr Kowalski in return for HIS not bringing proceedings against Mitsubishi independently of the Act. The order noted agreement that Mr Kowalski would not take any further steps in relation to the judgment in the Magistrates Court action. Pursuant to the order, Mitsubishi paid $23,000 to Mr Kowalski’s then solicitors RJ Cole & Partners.
Subsequently, Mitsubishi applied in the Industrial Court to set aside the Industrial Court order on the ground that it had been made pursuant to a larger settlement agreement between Mitsubishi and Mr Kowalski of claims under the 1971 Act and under the Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Act) under which Mitsubishi agreed to pay a larger sum as settlement of all claims in respect of injuries suffered before and after 30 September 1987 which larger settlement agreement was subject to a condition that WorkCover’s consent be obtained and which condition was not satisfied. In June 1993 an order was made by the Industrial Court setting aside the Industrial Court order.
Mitsubishi demanded repayment of the sum of $23,000 and RJ Cole & Partners repaid to Mitsubishi $13,881, leaving a balance of $9,119.
On 26 October 1998 Mitsubishi and Mr Kowalski attended a mediation conducted by Mr Walsh QC. A typed Heads of Agreement was produced by Mitsubishi, handwritten changes were made to it and it was signed by the parties (the 26 October Heads of Agreement). On 27 October 1998 a fully typed version of the Heads of Agreement was produced by Mitsubishi and it was signed by the parties (the 27 October Heads of Agreement). Both versions of the Heads of Agreement provided for Mitsubishi to pay to Mr Kowalski $200,000 in full and final settlement of defined entitlements. In November 1998, Mitsubishi paid $200,000 to Mr Kowalski.
On 28 January 2014, on the application of the Attorney-General, I made orders pursuant to section 39 of the Supreme Court Act 1935(SA) amongst other things:
1. prohibiting Mr Kowalski from instituting further proceedings in a prescribed court without permission of the Supreme Court (the prohibition order); and
2.staying subject to listed exceptions all existing proceedings instituted by Mr Kowalski in a prescribed court unless permission is granted by the Supreme Court (the stay order).
On 14 March 2017 Mr Kowalski applied for permission to file an interlocutory application in the Magistrates Court action seeking an order pursuant to section 4 of the Enforcement of Judgments Act 1991 (SA) (the Act) that the Court investigate Mitsubishi’s means of satisfying the judgment. Mr Kowalski’s application was supported by an affidavit in which he exhibited the proposed interlocutory application and supporting affidavit and certain other documents.
On the same date Mr Kowalski filed in the Magistrates Court action the interlocutory application and supporting affidavit in the belief that he may not need permission under section 39 to do so.
Mr Kowalski subsequently filed further affidavits in support of his application for permission, being affidavits sworn on 4 April, 19 April and 2 May 2017.
In general, applications by Mr Kowalski for permission to institute new proceedings or take fresh steps in existing proceedings that are stayed pursuant to my 2014 order are heard ex parte. However, in the present instance I determined that it was appropriate to invite Mitsubishi to make submissions, if it wished, on Mr Kowalski’s application and Mr Kowalski accordingly gave notice of the application to Mitsubishi.
Hearing
I heard Mr Kowalski’s application on 8 May 2017. Mr Kowalski tendered his four affidavits referred to above together with certain other documents. Mitsubishi tendered a copy of the 27 October Heads of Agreement.
Mitsubishi contends that permission should be refused because:
1.Mr Kowalski could only seek to enforce the judgment after making restitution of the balance of $9,119 of the sum of $23,000 not refunded by RJ Cole & Partners;
2.enforcement of the judgment is precluded by the 27 October Heads of Agreement;
3.the interlocutory application is an abuse of process because it is not genuinely in furtherance of a desire to investigate Mitsubishi’s means of satisfying the consent judgment but is brought for the ulterior purpose of forcing Mitsubishi to pay the judgment debt; and/or
4.the application is out of time pursuant to rule 121 of the Magistrates Court (Civil) Rules 1992 or the Magistrates Court (Civil) Rules 2013 (SA) (to which I refer compendiously as the Magistrates Court Rules).[1]
[1] The relevant provisions of the Magistrates Court (Civil) Rules 1992 (SA) and the Magistrates Court (Civil) Rules 2013 (SA) are identical and it is therefore unnecessary to determine which Rules apply to steps taken in the Magistrates Court action after the latter came into effect.
The need for permission
Sections 4 and 5 of the Act in conjunction empower a court (the Magistrates Court, District Court or Supreme Court) which has granted a monetary judgment in an action, on application by the judgment creditor, to examine the judgment debtor’s means of satisfying the judgment and order that the judgment debtor pay the debt in a lump sum or by instalments at a time or times fixed by the court.
An application to examine the judgment debtor’s means of satisfying the judgment or for an order for payment of the judgment debt is a step in an existing proceeding rather than the institution of a proceeding within the meaning of section 39 of the Supreme Court Act 1935(SA).
by the stay order, all existing proceedings in the Magistrates Court (and other prescribed courts) are stayed unless permission is granted by the Supreme Court. The Magistrates Court action is not one of the listed exceptions. All steps, including enforcement of judgment steps, are therefore stayed in that action unless permission is granted by the Supreme Court.
The test for granting permission to institute a new proceeding or take a step in an existing proceeding reflects the criteria for making prohibition and stay orders in the first place, namely whether the new proceeding or step in the existing proceeding is reasonably arguable and whether it is not brought for an ulterior purpose.
Restitution of $9,118 as condition to enforcement
Mitsubishi contends that Mr Kowalski can only seek to enforce the judgment if he first makes restitution of the balance of $9,119 of the sum of $23,000 not refunded by RJ Cole & Partners.
The judgment includes not only the principal amount of $3,000 but also the costs of action on a party/party basis. Those costs have not been fixed by being taxed by the Magistrates Court pursuant to rule 108 of the Magistrates Court Rules. Unless and until they are fixed, Mr Kowalski cannot enforce payment of them pursuant to the Act. His application for examination under section 4 of the Act must therefore necessarily be confined to the principal amount of the judgment together with interest pursuant to section 35 of the Magistrates Court Act 1991 (SA).
When Mitsubishi paid $23,000 to Mr Kowalski’s solicitors in August 1992, the payment was made pursuant to the Industrial Court order and, if the Industrial Court order had not been set aside, it would have discharged Mitsubishi’s liability to pay $3,000 plus costs pursuant to the judgment.
However, the Industrial Court order was set aside in June 1993.[2] Upon being set aside, the sum of $23,000 became repayable to Mitsubishi and the debt of $3,000 plus costs pursuant to the judgment was revived. Mitsubishi does not argue that the judgment debt has been paid in these circumstances.
[2] Mr Kowalski has contended in other matters in different contexts that RJ Cole & Partners erroneously consented to Mitsubishi’s set aside application in 1993 and that the settlement of his claims under the 1971 Act was independent of the settlement of his claims under the 1986 Act, with only the latter being subject to the consent of WorkCover. However, Mitsubishi takes issue with that contention and eschews Mr Kowalski's contention. In any event, the 1993 set aside order remains an effective order of the Industrial Court unless and until it might be set aside.
Mitsubishi rather argues that Mr Kowalski cannot seek to enforce the judgment without first making restitution of $9,118, relying on the principle that “before rescission can be ordered the party seeking rescission must be able to restore the other party to the position that party was in”.[3] However, this is an equitable principle and has no application to the enforcement of a judgment under the Act.
[3] Edmunds v Pickering (No 4) [2000] SASC 267, (2000) 77 SASR 381 at [63] per Lander J.
Mitsubishi’s first contention must be rejected.
Heads of agreement as a bar
Mitsubishi contends that clauses 1.1 and 4.1 of the 27 October Heads of Agreement bar enforcement of the judgment. Mr Kowalski contends that he executed the 27 October Heads of Agreement in the belief induced by Mitsubishi that it was materially the same as the 26 October Heads of Agreement subject only to non-material corrections and the 27 October Heads of Agreement is therefore non est factum. However, for the purpose of the present application,[4] the provisions relied on by Mitsubishi in the 27 October Heads of Agreement are identical to the provisions in the 26 October Heads of Agreement and nothing turns on Mr Kowalski’s non est factum argument.
[4] The position may be different for the purpose of other issues between Mitsubishi and Mr Kowalski, particularly those relating to workers compensation claims.
Mitsubishi contends that enforcement of the judgment is barred by express provisions of the Heads of Agreement, namely clauses 1.1 and 4.1. Clauses 1 and 4.1 provide as follows:
1.Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1     Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997
1.2     Any outstanding sick leave
1.3     Any matters related to the termination of his employment with MMAL
1.4     Any superannuation payable by the MMAL Staff Superannuation Fund.
4.In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1     Not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against RJ Cole & Partners and, Dowd.
The chapeau to clause 1 refers to entitlements Mr Kowalski may have to “compensation” and “damages”.[5] These are not apposite to include a pre-existing judgment debt, which is of a quite different nature to compensation and damages regardless of the cause of action that historically gave rise to the judgment debt. Clause 1.1 is limited in turn to entitlements Mr Kowalski may have to “compensation” and “damages” for any injuries or disabilities in respect of his eye injury and other injuries he suffered or claimed to have suffered and are not apposite to include a pre-existing judgment debt. Clause 4.1 in turn is limited to the institution of legal proceedings for compensation and damages referred to in clause 1 and is not apposite to apply to enforcement of a pre-existing judgment debt. The structure and wording of the Heads of Agreement stands in stark contrast to the structure and wording of the Industrial Court order which included an express provision addressing the judgment. Accordingly, the express terms of the Heads of Agreement do not bar enforcement of the judgment by Mr Kowalski.
[5] It also refers to “sick leave” and “superannuation” but these have no relevance in the present case and I ignore the reference in clause 1 to them.
It is at least reasonably arguable that it is an implied term of the Heads of Agreement that Mr Kowalski is precluded from enforcing any judgment debts against Mitsubishi and it may well be that Mitsubishi would ultimately be successful in establishing the existence of such an implied term. Mitsubishi does not rely on an implied term in argument on Mr Kowalski’s application for permission. Upon application by Mr Kowalski to enforce the judgment, the onus of persuasion would lie on Mitsubishi to persuade the Court of the existence of such an implied term. The test for the grant of permission under section 39 for Mr Kowalski to take a step is whether it is reasonably arguable that Mr Kowalski is entitled to enforce the judgment, which is a lower hurdle than establishing that he would ultimately succeed. The former test is satisfied insofar as Mitsubishi would rely on the Heads of Agreement in the Magistrates Court as an answer to the application.
Ulterior purpose
Mitsubishi contends that the interlocutory application is an abuse of process because it is not genuinely brought in furtherance of a desire to investigate Mitsubishi’s means of satisfying the judgment but rather for the ulterior purpose of forcing Mitsubishi to pay the judgment debt.
As observed above, sections 4 and 5 of the Act operate in conjunction to empower the Magistrates Court to examine the judgment debtor’s means of satisfying the judgment and order that the judgment debtor pay the debt in a lump sum or by instalments at a time or times fixed by the Court.
Sections 4 and 5 relevantly provide:
4—Investigation of judgment debtor's financial position
(1)The court may, on application by the judgment creditor, investigate the judgment debtor's means of satisfying a monetary judgment.
(2)The court will, on application by the judgment creditor, issue a summons to require the judgment debtor or any other person who may be able to assist with the investigation to appear for examination before the court or to produce documents relevant to the investigation to the court.
(3)A summons under subsection (2) must be served personally.
(4)If a person fails to appear as required by the summons, the court may issue a warrant to have the person arrested and brought before the court.
5—Order for payment of instalments etc
(1)The court may, on application by a judgment creditor, order the judgment debtor—
(a)     to pay the judgment debt immediately or within a period specified by the court; or
(b)     to pay such instalments towards the satisfaction of the judgment debt as the court specifies in the order.
(2)An order can only be made against a natural person under subsection (1) if—
(a)     the court has conducted an investigation into the judgment debtor's means of satisfying the judgment; or
(b)     the court is satisfied that there are, in the circumstances of the case, proper reasons for dispensing with such an investigation.
(3)In making such an order against a natural person, the court should have due regard to evidence placed before it as to—
(a)     the judgment debtor's means of satisfying the judgment; and
(b)     the necessary living expenses of the judgment debtor and his or her dependants; and
(c)     other liabilities of the judgment debtor,
and where satisfactory evidence is placed before the court on those subjects the court should frame its order so as to ensure that it does not impose unreasonable obligations on the judgment debtor.

Sections 4 and 5 operate in conjunction because section 5 envisages that, in determining whether to order payment in a lump sum or by instalments and in fixing the timing of the payment ordered, the Court will have regard to the judgment debtor’s means of satisfying the judgment, which in turn will ordinarily have been investigated under section 4. Conversely, the only purpose of examination of the judgment debtor’s means of satisfying the judgment under section 4 is to lead to the making of an order for payment under section 5. Indeed, in the case of a natural person, subsection 5(2) makes it ordinarily a precondition to the making of an order for payment under section 5 that there has been an investigation of the judgment debtor’s means of satisfying the judgment under section 4.
Mitsubishi contends that Mr Kowalski does not genuinely desire to investigate Mitsubishi’s means of satisfying the judgment. This contention is put on the basis that judicial notice should be taken of Mitsubishi’s size and operations in Australia and that Mr Kowalski could have no doubt that it has the means to satisfy the judgment. Mitsubishi contends that, if this is not Mr Kowalski’s purpose, it must be an ulterior purpose, namely to force Mitsubishi to pay the judgment debt. Mitsubishi did not cross-examine Mr Kowalski on his affidavits and it may well be that it was required to do so and to put its case to him in cross-examination in order to advance this contention. However, leaving this question aside, Mitsubishi’s contention proceeds on a false premise as to the operation of sections 4 and 5 of the Act.
The purpose of a judgment creditor seeking an examination under section 4 will always be to obtain an order under section 5 for payment of the debt. In that sense, the judgment creditor’s purpose will always be to force the judgment debtor to pay the debt. This is not an illegitimate ulterior purpose but the legitimate purpose of an application for examination under section 4. If at the hearing of an application for examination under section 4 the judgment debtor concedes an ability to pay the judgment debt immediately, ordinarily the Court will proceed to make an order to that effect under section 5 without further delay. Mitsubishi’s contention that Mr Kowalski seeks to bring the application in the Magistrates Court for an ulterior purpose must be rejected.
Mitsubishi contends that a summons under subsection 4(2) cannot be issued to a corporation because a corporation cannot answer questions and cannot be arrested and brought before the Court if it fails to appear as summoned.[6] Assuming without deciding that a summons cannot be issued to a corporation under subsection 4(2), the question of issuing a summons under that subsection only arises when the application for examination under subsection 4(1) comes before the Court. Mitsubishi does not contend that an application for examination under subsection 4(1) cannot be made when the judgment debtor is a corporation and indeed cites for a different purpose Linke v TT Builders Pty Ltd (No 3),[7] in which White J ordered that a summons be issued to a natural person under subsection 4(2) for the purpose of the examination of the corporate entity – TT Builders Pty Ltd – under subsection 4(1). On Mr Kowalski’s application for examination under subsection 4(1), the Magistrates Court would have power to issue a summons under subsection 4(2) to an appropriate officer of Mitsubishi.
[6] Mitsubishi cites Re Chircan Holdings Pty Ltd [2002] NSWSC 988, (2003) 21 ACLC 29 at [11]-[14] per Barrett J (which dealt with summonses issued under sections 596A and 596B of the Corporations Act 2001 (Cth)) as authority for the latter proposition.
[7] [2015] FCA 1054, (2015) 240 FCR 570 at [37].
If I had accepted Mitsubishi’s contention in relation to Mr Kowalski’s application for permission to issue an interlocutory application seeking an examination under section 4 and this were the only reason to deny permission, I would have granted permission to Mr Kowalski to apply for a payment order under section 5 of the Act.
Mitsubishi’s third contention must be rejected.
Time bar
Mitsubishi originally contended that Mr Kowalski’s interlocutory application in the Magistrates Court under section 4 of the Act would be barred by section 34 of the Limitation of Actions Act 1936 (SA) which imposes a 15 year limitation period on actions, amongst other things, “upon any judgment”. This prompted Mr Kowalski to rely upon section 45 of the Act which suspends the running of time if the person entitled to bring the proceeding is under a legal disability. However, Mitsubishi has now abandoned that contention and accepts that section 34 does not apply to an application in the Magistrates Court for enforcement under the Act of a judgment granted in the Magistrates Court.[8]
[8] See WT Lamb & Sons v Rider [1948] 2 KB 331 at 337-338 per Scott and Romer LJJ; Dennehy v Reasonable Endeavours Pty Ltd, in the matter of Dennehy (A Bankrupt) [2003] FCAFC 158(2003) 130 FCR 494 at [18] per Finkelstein J (with whom Madgewick and Dowsett JJ agreed); Barrak and Ors & Barakat[2005] FamCA 906; (2005) 194 FLR 223 at [56] per Faulks DCJ, Kay and Boland JJ.
Mitsubishi relies instead on rule 121(1) of the Magistrates Court Rules which provides:
The Registrar must not issue an enforcement process in respect of a judgment that is more than 6 years old, except with leave of the Court, which must only be given if the judgment creditor establishes proper reasons to explain the delay in enforcement.
Mitsubishi contends that the judgment was “far in excess of 15 years old” when Mr Kowalski lodged his interlocutory application; accordingly he needs the leave of the Court; and he has not established proper reasons to explain the delay in the enforcement.
Mr Kowalski in response relies on section 45 of the Limitation of Actions Act 1936 (SA). Mr Kowalski tendered a letter from his general practitioner, Dr Dang, in which Dr Dang said:
This is to confirm that I have been Kazimir’s General Practitioner since 2009. He has been treated for depression and anxiety since 1991 and has been on antidepressant medication.
Mitsubishi contends that, while this may prove that Mr Kowalski has suffered from depression and anxiety since the judgment was granted in 1992, it does not prove that he was prevented or impeded thereby from applying to enforce the judgment over that period.
Section 45 of the Limitation of Actions Act 1936 (SA) does not apply to an application to enforce a judgment under the Act because no such time limitation is imposed in respect of such an application by the Limitation of Actions Act 1936 (SA) or the Act or any other “law” within the meaning of section 45. However, under rule 121(1) of the Magistrates Court Rules, the Magistrates Court has a broader discretion to give leave to issue an enforcement process not only if the judgment creditor was under a legal disability (within the meaning of section 45) but also if the judgment creditor establishes proper reasons to explain the delay in enforcement.
If Mr Kowalski had adduced evidence from a medical practitioner explaining the effect of his depression and anxiety on his abilities since 1992 and expressing the opinion that his depression and anxiety prevented his enforcing the judgment at least between 1998 (the six year anniversary of the judgment) and 2017, it would have been appropriate to grant permission under section 39 for him to file the interlocutory summons in the Magistrates Court. However, the evidence from Dr Dang falls far short of this. Dr Dang does not address the effect of Mr Kowalski’s depression and anxiety on his abilities, nor does he express any opinion as to their effect on Mr Kowalski’s ability to take steps to enforce the judgment.
I observe that each of sections 4 and 5 of the Act, by the use of the word “may”, confers on the Court a discretion whether to order an examination (under section 4) or payment (under section 5). On its face, the discretion is unfettered although it must be exercised for the purpose for which it is conferred. It is arguable that rule 121(1) of the Magistrates Court Rules, insofar as it imposes a prima facie time limit of six years and confines the discretion for the grant of leave to the situation in which the judgment creditor establishes proper reasons to explain the delay in enforcement, is invalid as being inconsistent with the Act. However, if it be assumed that rule 121(1) is invalid, nevertheless the Magistrates Court would have a discretion directly under sections 4 and 5 of the Act whether to make orders under those sections and it would exercise that discretion having regard to the delay in enforcement since the judgment was entered. In the present case where that delay is in excess of 24 years, in practical terms Mr Kowalski would need to demonstrate good reason for the delay and he has not done so.
I uphold Mitsubishi’s fourth contention.
Conclusion
I dismiss Mr Kowalski’s application for permission under section 39 of the Supreme Court Act 1935 (SA) to file an interlocutory application in the Magistrates Court for an investigation into Mitsubishi’s means of satisfying the judgment.