Attorney-General v Kowalski (No 6)

[2017] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ATTORNEY-GENERAL v KOWALSKI (NO 6)

[2017] SASC 122

Judgment of The Honourable Justice Blue

17 August 2017

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT - NEGLIGENCE

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - EMPLOYER AND EMPLOYEE

Application under section 39 of the Supreme Court Act 1935 (SA) for permission to apply to reinstate an appeal or file a fresh appeal against dismissal of a professional negligence action.

In May 1989 Mr Kowalski suffered an injury to his back at work.  Mitsubishi made weekly payments of workers compensation for his time off work and paid his medical expenses.  Mr Kowalski retained RJ Cole & Partners in relation to a claim that his workers compensation payments take into account his overtime.

In April/May 1990 Mr Dowd, a solicitor employed by RJ Cole & Partners, advised Mr Kowalski that common law negligence proceedings should be instituted against Mitsubishi because a common law claim enabled a claim for damages for pain, suffering and loss of enjoyment of life as opposed to workers compensation.  Mr Dowd took instructions from Mr Kowalski that the system of draining oil from engines permitted oil to drain onto the floor on occasions and Mr Kowalski had slipped on a pool of oil on the floor. RJ Cole & Partners issued a summons in the District Court against Mitsubishi claiming damages for negligence. 

Mitsubishi filed a defence denying liability and specifically denying that there was oil on the floor when Mr Kowalski allegedly slipped as pleaded in the statement of claim.

In July 1991 Mr Dowd briefed a barrister, Michael Bell, to provide an opinion concerning liability and quantum. Mr Bell expressed the opinion that after apportionment for contributory negligence damages were likely to be assessed in the range $16,000 to $19,000. Mr Bell expressed the opinion that, on an assessment under section 43 of the Workers’ Rehabilitation and Compensation Act 1986 (SA) Mr Kowalski would be likely to receive between $15,000 and $18,750.

In September 1991 the action was listed for trial.  At that point, RJ Cole & Partners had not taken any steps, apart from having taken  brief statements from Mr Kowalski in May and December 1990, to seek to prove that in May 1989 oil was drained from Mitsubishi engines into watering cans and on occasions some of the oil missed the watering can and spilt on to the floor.  

The trial proceeded before Judge Lee in the District Court in December 1991 and March 1992.  No evidence was called at trial to support Mr Kowalski’s evidence that oil was drained from Mitsubishi engines into watering cans and spilt on to the floor from time to time.  After the conclusion of the trial, RJ Cole & Partners rendered an account to Mr Kowalski for $18,634.66. 

In July 1992 Judge Lee dismissed Mr Kowalski’s claim, finding that the allegations of negligence had not been established. 

In July 1996 Mr Kowalski instituted an action in the District Court against RJ Cole & Partners for negligence in relation to the common law action.  The trial of the action proceeded before Judge Anderson in December 2001 and January 2002.

On 21 March 2002 Judge Anderson dismissed Mr Kowalski’s action and ordered that he pay RJ Cole & Partners’ costs of action.  On 3 April 2002 Mr Kowalski lodged for filing in the Supreme Court a notice of appeal accompanied by an application for waiver of the filing fee supported by an affidavit. On 4 April 2002 action number 467 in 2002 was allocated to the appeal and the application for waiver and supporting affidavit were designated FDN 1 and FDN 2.  On 5 April 2002 the matter was listed for mention at 10.00 am.  Master Kelly made an order refusing the application for waiver of fees.  This was not refused on financial grounds but on the ground that Master Kelly considered that the grounds of appeal were not reasonably arguable in light of Judge Anderson’s reasons for judgment.

In January 2014 an order was made prohibiting Mr Kowalski from instituting further proceedings without prior permission and staying all existing proceedings subject to listed exceptions. Mr Kowalski subsequently sought permission to apply to reinstate the 2002 appeal or file a fresh appeal in the same terms against Judge Anderson’s dismissal of his professional negligence action. 

Mr Kowalski was directed to give notice of the application to RJ Cole & Partners.  RJ Cole & Partners made submissions opposing the grant of leave on grounds that Mr Kowalski’s grounds of appeal were not reasonably arguable, no appeal was instituted in 2002, RJ Cole & Partners would suffer evidential and financial prejudice if an extension of time in which to appeal were granted and Mr Kowalski does not have reasonable prospects of obtaining an extension of time.

Held:  

1. It is reasonably arguable that Judge Anderson erred in not finding that RJ Cole & Partners was negligent in failing to advise Mr Kowalski about the disadvantages of proceeding with a common law action for negligence compared to a section 43 workers’ compensation assessment (at [144]).

2.  It is reasonably arguable  that Judge Anderson erred in not finding that RJ Cole & Partners was negligent in not taking any steps before trial to attempt to support Mr Kowalski’s evidence (at [157]).

3.  Mr Kowalski does not have sufficient prospects of success on appeal on the merits to justify the grant of permission to proceed on his other grounds of appeal (at [153]-[154] and [165]-[167]).

4.  It is likely that Judge Kelly acted beyond jurisdiction in refusing Mr Kowalski’s application for waiver of fees by reference to an assessment of the prospects of success of the appeal as opposed to Mr Kowalski’s financial position (at [191]-[194]).

5.  If Mr Kowalski obtains the requisite extension of time and succeeds on appeal in establishing that RJ Cole & Partners were negligent, it is reasonably arguable that he suffered damage in the amount of the costs charged by R J Cole & Partners in relation to the District Court action but he  does not have sufficient prospects of success in relation to consequential loss claimed to justify the grant of permission to file or prosecute an appeal in respect thereof (at [140]-[143], [155]-[156] and  [209]-[210]).

6.  It is reasonably arguable that Mr Kowalski instituted an appeal against Judge Anderson's judgment in May 2002 (at [180]-[184]).

7.  RJ Cole & Partners would not suffer evidential prejudice as a result of the delay in institution or prosecution of an appeal if a copy of the transcript and of the exhibits tendered by Mr Kowalski are made available to them for the purpose of the appeal (at [202]-[205]).

8.  As the relief granted to Mr Kowalski would be confined to the recovery of costs charged by RJ Cole & Partners, they will not suffer financial prejudice as a result of the delay in institution or prosecution of an appeal because Mr Kowalski’s claim for repayment of costs is not covered by their professional indemnity policy (at [204]).

9.  Permission granted to Mr Kowalski to apply to reinstate the 2002 appeal if an appeal was instituted and to file at the same time a new notice of appeal against the contingency that the Full Court holds that no appeal was instituted in 2002.  The grounds of appeal are to be confined to the two grounds referred to at 1 and 2 above and the relief is to be confined to recovery of the costs charged by RJ Cole & Partners in respect of the District Court action (at [211]).

District Court Civil Rules 1987 (SA) r 84.12; District Court Civil Rules 2006 (SA) r 53; Limitation of Actions Act 1948 (SA) s 48; Supreme Court Act 1935 (SA) s 39, s 130(2); Supreme Court Civil Rules 1987 (SA) r 95.01, r 95.02, r 95.11, r 102.09, r 3.01(a); Workers Compensation Act 1971 (SA); Workers Rehabilitation and Compensation Act 1986 (SA) s 32, s 35, s 42, s 43, s 53, s 54, s 63, s 77, s 95, s 96, s 78, s 97, s 92, referred to.
Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota) [2016] SASCFC 8; Lyberopoulos v Svilans [2001] SASC 254; Manser v Spry (1994) 181 CLR 428; Pearce v Ryan (Unreported, Supreme Court of South Australia, Debelle J, 4 February 1997), discussed.
Calvaresi v Lawson (1995) 184 LSJS 147; Connelly v Director of Public Prosecutions [1969] AC 1254; Reichel v Magrath (1889) 14 App Cas 665; Rippon v Chilcotin [2001] NSWCA 142; Wilson v Commonwealth of Australia [1999] FCA 1308, considered.

ATTORNEY-GENERAL v KOWALSKI (NO 6)
[2017] SASC 122

Civil

BLUE J:  

1. This is an application by Kazimir Kowalski under section 39 of the Supreme Court Act 1935(SA) for permission to apply to reinstate an appeal or file a fresh appeal in the same terms against the dismissal by a District Court Judge of a professional negligence action against RJ Cole & Partners.

   Background

2. Between 1964 and 1994 Mr Kowalski was (apart from national service) employed by Mitsubishi Motors Australia Limited (Mitsubishi).[1]

   [1]    Exhibit P89 Transcript of trial before Judge Lee, pages 3-5.

   Workers Compensation

3. The Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) came into force generally on 30 September 1987.  It replaced the Workers Compensation Act 1971 (SA) (the former Act). The Act provided that a worker was entitled to compensation if he or she suffered a disability arising out of or in the course of employment.[2] Where the employer was an exempt employer (as was Mitsubishi), compensation was payable by the employer and otherwise by WorkCover.[3] The compensation scheme was a “no fault” scheme in that a worker was entitled to compensation regardless of whether the disability was the result of the employer’s negligence (or the worker’s negligence).

   [2]    Workers Rehabilitation and Compensation Act 1986 (SA) section 30.

   [3]    Workers Rehabilitation and Compensation Act 1986 (SA) section 63(1).

4. There were three primary categories of compensation payable under the Act in respect of a compensable disability:

   1.     weekly income maintenance payments (income maintenance) during incapacity as a result of the compensable disability,[4] which could be commuted to a lump sum representing the capital value of future weekly payments for permanent incapacity (subject to a prescribed cap);[5] 

   2.     payment of expenses for medical, hospital or other treatment or other incidental matters (collectively medical expenses compensation) reasonably incurred as a result of the compensable disability;[6]

   3.     lump sum compensation for non-economic loss when permanent disability resulted from the compensable disability (non-economic loss compensation), being a percentage (depending on the nature and degree of the disability) of a prescribed sum that was $75,100 in respect of injuries suffered in 1989.[7]

   [4]    Workers Rehabilitation and Compensation Act 1986 (SA) section 35.

   [5]    Workers Rehabilitation and Compensation Act 1986 (SA) section 42.

   [6]    Workers Rehabilitation and Compensation Act 1986 (SA) section 32.

   [7]    Workers Rehabilitation and Compensation Act 1986 (SA) section 43.

5. Decisions in respect of compensation were initially made by the exempt employer or WorkCover as applicable[8]  and were subject to review initially by a Review Officer[9] and then on appeal by the Workers Compensation Appeal Tribunal.[10]

   [8]    Workers Rehabilitation and Compensation Act 1986 (SA) sections 53 and 63(1).

   [9]    Workers Rehabilitation and Compensation Act 1986 (SA) sections 77, 95 and 96.

   [10]   Workers Rehabilitation and Compensation Act 1986 (SA) sections 78 and 97.

6. A worker was not liable to pay the costs of WorkCover or the exempt employer if unsuccessful in a proceeding for compensation before a review authority (Review Officer or Workers Compensation Appeal Tribunal) unless the review authority held the proceeding to be frivolous or vexatious and exercised a discretion to order payment of such costs.[11] A worker was entitled to reimbursement of his or her own legal costs incurred in a proceeding for compensation if successful or if the review authority certified that the worker acted reasonably in bringing the proceeding.[12] Accordingly, provided that a worker acted reasonably in bringing a proceeding for compensation, the worker recovered his or her own legal costs and was not liable to pay the opponent’s legal costs.

   [11]   Workers Rehabilitation and Compensation Act 1986 (SA) section 92(3).

   [12]   Workers Rehabilitation and Compensation Act 1986 (SA) section 92(2).

7. The three primary categories of compensation payable under the Act closely corresponded with the three major heads of damage at common law for personal injury caused by negligence of an employer, namely:

   1.economic loss being loss of past earnings and a capital sum for loss of earning capacity (similar to income maintenance);[13]

   2.special damages being essentially past medical expenses and a capital sum for future medical expenses (similar to medical expenses compensation);[14]

   3.general damages for non-economic loss (similar to non-economic loss compensation).

   [13] There were some differences including that income maintenance under the Act after the first year was reduced to 80 per cent of average weekly earnings and the commutation only applied to permanent incapacity and was at the option of the employer.

   [14]   There were some differences including that there was no commutation of future medical expense liability.

8. “Non-economic loss” was defined by section 3 of the Act to mean pain and suffering, loss of amenities of life, loss of expectation of life or any other loss or detriment of a non-economic nature; which is the same concept as damages for non-economic loss at common law.

9. Section 54 of the Act abolished common law liability of an employer in respect of a compensable disability arising from employment, except liability for non-economic loss.[15] 

   [15]   There was also an exception for solatium and a general exception for liability arising out of the use of a motor vehicle required to be insured under compulsory third party motor vehicle insurance legislation but neither is relevant in the present case and they can be ignored.

10. If a worker suffered permanent disability as a result of a work injury caused by the employer’s negligence, the worker had concurrent rights to seek non-economic loss compensation under section 43 of the Act and/or to seek damages for non-economic loss in a common law action (but the worker could not recover double compensation[16]). There were three principal differences between these alternative remedies:

    1. In a common law action the worker had to prove that the employer was negligent and the negligence caused the injury; whereas compensation under the Act was a no fault scheme.

    2.     In a common law action the worker would not recover his or her own legal costs if unsuccessful and would ordinarily have to pay the employer’s party/party legal costs if unsuccessful; whereas in a compensation proceeding a worker would recover his or her own legal costs if it was reasonable to bring the proceeding and would not be liable in that event for the employer’s costs.

    3. In a common law action, damages were assessed by reference to precedent but were otherwise at large; whereas non-economic loss compensation under section 43 of the Act was assessed by reference to a maximum prescribed sum ($75,100 for 1989 injuries). In both cases, except in the case of prescribed injuries (inapplicable in the present case), the quantum was assessed by reference to the nature of the injury and the effect of the injury on the worker’s life. Accordingly, the quantum recovered in a common law action could be higher than, the same as or lower than the quantum recovered in a non-economic loss compensation claim under section 43 (depending on the nature and extent of the disability).

    [16]   Workers Rehabilitation and Compensation Act 1986 (SA) section 54(3).

11. In Manser v Spry,[17] Mason CJ, Brennan, Dawson, Toohey and McHugh JJ succinctly summarised the relationship between common law damages for non-economic loss and non-economic loss compensation under section 43 in the following terms:

    The lump sum payable under s.43 is thus a statutory substitute for that component of common law damages which reflects non-economic loss for a tortiously inflicted injury, albeit a lump sum is payable under the Act only if a worker's injury produces a compensable disability.[18]

    [17] (1994) 181 CLR 428.

    [18]   At 438.

    Mr Kowalski’s injury

12. In May 1989 Mr Kowalski was employed as a tooling analyst in Mitsubishi’s engine assembly plant at Lonsdale.[19] At the end of the engine assembly line, there was a rework area, in which amongst other things defective engines were repaired or dismantled for parts. This often required the oil to be drained from the sump. Mr Kowalski gave evidence before Judge Lee that, to do this, engines were placed on stands, the sump plug was removed and the oil was drained into a container like a watering can and sometimes some of the oil spilled onto the floor. Oil also sometimes spilled onto the floor in other ways, including when engine heads were removed and when oil filters were removed.[20]

    [19]   Exhibit P89 Transcript of trial before Judge Lee, pages 5-7.

    [20]   Exhibit P89 Transcript of trial before Judge Lee, pages 23-26.

13. In May 1989 Mr Kowalski suffered an injury to his back at work.  On 11 May he stopped work and attended on his general practitioner, Dr Balkwill.[21] He told Dr Balkwill that he had slipped on some oil at work on 9 May and started to get some low back pain which gradually worsened.[22] He did not substantively return to work until 28 July.[23]

    [21]   Exhibit P89 Transcript of trial before Judge Lee, pages 11, 53-54.

    [22]   Exhibit P89 Transcript of trial before Judge Lee, page 11.

    [23]   Exhibit P89 Transcript of trial before Judge Lee, page 61.

14. On 16 May 1989 Mr Kowalski saw Dr Balkwill again and lodged a claim for compensation with Mitsubishi.[24] In the claim form, Mr Kowalski said that he had suffered a torn lumbar disc and sciatica as a result of slipping on oil in the rework area. He showed 11 May as the date on which he had stopped work. He also showed 11 May as the date on which the injury occurred (he corrected this on 7 June in the Supervisors Accident Report[25]). On 18 May Mitsubishi made a determination accepting liability to pay income maintenance.[26]

    [24]   Exhibits P8 and P89 Transcript of trial before Judge Lee, pages 11-12.

    [25]   Exhibit P11.

    [26]   Exhibit P9.

15. On 22 May 1989 Mr Kowalski was referred by Dr Balkwill to an orthopaedic surgeon, Mr Fry.[27] On 26 June Mr Kowalski underwent an epidural block under Mr Fry.[28]

    [27]   Exhibit P89 Transcript of trial before Judge Lee, page 13.

    [28]   Exhibit P1.

16. On 28 July 1989 Mr Kowalski returned to work on restricted duties.[29]  Mitsubishi paid weekly payments for his time off work up to 27 July.[30] Mitsubishi also met his medical expenses.  

    [29]   Exhibit P89 Transcript of trial before Judge Lee, page 61.

    [30]   Exhibit P10.

17. On 28 September 1989 Mr Kowalski consulted Stephen Dowd of RJ Cole & Partners about Mitsubishi’s failure to include overtime in his workers compensation weekly payments.[31]  On 18 October Mitsubishi wrote to Mr Dowd saying that, in light of a recent Supreme Court decision, it had agreed to include overtime in Mr Kowalski’s workers compensation weekly payments.[32]

    [31]   Exhibit P12.

    [32]   Exhibit P16.

    Mr Dowd’s advice to sue for negligence

1. On 21 April 1990 Mr Dowd, unprompted by any communication from Mr Kowalski, wrote to Mr Kowalski.[33]  He said:

   We would be grateful if you would now make an appointment to confer with the writer in order that we may ascertain how you are currently getting on.

   We also believe that there is a potential common law claim in relation to this matter and we are keen to discuss this with you.

   The primary difference between a common law claim and a claim pursuant to the provisions of the worker’s rehabilitation & compensation act is that damages can be paid for pain, suffering and loss of enjoyment of life in the instance of a common law claim.

   [33]   Exhibit P19.

2. On 1 May 1990 Mr Kowalski met with Mr Dowd as requested. Mr Dowd prepared a typed file note of the attendance.[34] Mr Dowd recorded that Mr Kowalski sustained his injury when he walked into the engine re-work area and slipped on oil. Mr Dowd recorded that reworked engines mounted on racks were drained of oil which was simply allowed to drain onto the ground. Mr Dowd recorded that people with buckets cleaned up excess oil. Mr Dowd recorded that they had since become more meticulous in the way they drained the oil. Mr Dowd recorded that they had devised a stand with a tray to catch oil.

   [34]  Exhibit P20.

3. Mr Dowd made an appointment for Mr Kowalski to see Mr Hone, an orthopaedic surgeon. Mr Dowd advised Mr Kowalski that RJ Cole & Partners should institute common law proceedings against Mitsubishi and leave them on file until they had received medical reports from Mr Fry and Mr Hone.[35]

   [35]   Exhibit P20.

4. On 2 May 1990 and again on 25 June 1990 Mr Dowd wrote to Mr Fry and Mr Hone seeking medical reports. No report was received from Mr Fry.[36]

   [36]   Exhibit P72.

5. On 3 July 1990 Mr Kowalski saw Mr Hone. Mr Hone produced a report to RJ Cole & Partners expressing the opinion that Mr Kowalski suffered permanent residual disability.[37]

   [37]   Exhibit P182.

6. On 20 August 1990 RJ Cole & Partners issued on behalf of Mr Kowalski a summons in the District Court against Mitsubishi claiming damages for negligence (breach of duty of care, breach of implied term requiring reasonable care and breach of statutory duty requiring reasonable care) (the back injury action).[38] They pleaded that on 9 May 1989 Mr Kowalski slipped on a pool of oil and amongst other things Mitsubishi failed to provide a safe place of work,  failed to provide engine stands with trays to catch oil drained from engines and failed adequately to clean the floor and clean oil spills when they occurred.

   [38]   Exhibit P182.

   Steps up to listing for trial

7. On 22 August 1990 Mr Kowalski took three black and white photographs showing engine stands at Mitsubishi with and without drip trays (the black and white photographs) and provided them to Mr Dowd.

8. On 30 October 1990 Mr Ingman, an orthopaedic surgeon, provided a report to Mitsubishi’s solicitors in relation to Mr Kowalski, having examined him at their request.[39] He diagnosed a prolapsed lumbo-sacral disc and expressed the opinion that Mr Kowalski had a residual disability.

   [39]   Exhibit P1.

9. On 2 November 1990 Mitsubishi’s solicitors Baker O’Loughlin filed a defence denying liability.[40] Mitsubishi specifically denied that Mr Kowalski slipped on 9 May 1989 and that there was oil on the floor and affirmatively pleaded that it provided engine stands with trays to catch oil drained from engines.

   [40]   Exhibit P182.

10. On 20 December 1990 Mr Dowd attended on Mr Kowalski to discuss Mr Ingman’s report. Mr Dowd prepared a typed file note of the attendance. Mr Dowd recorded that Mr Kowalski told him that the oil was approximately one foot in diameter and that he saw it before he slipped on it. Mr Dowd recorded that an engine had been sitting on an engine stand, which had the oil drained out of it into a can, but it was a bit of a hit and miss affair whether all of the oil went into the can.

11. In December 1990 Mr Kowalski was referred by his general practitioner to Mr Moss, an orthopaedic surgeon.[41] Mr Kowalski saw Mr Moss in December 1990 and January and February 1991.

    [41]   Exhibit P1.

12. In February 1991 Mr Dowd sent a brief to barrister Tim Bryant to appear at a pre-trial conference on 14 February.[42] Mr Dowd sent separately to Mr Bryant the original black and white photographs.[43]

    [42]   At 32-35.

    [43]   Exhibit P86.

13. In February 1991 Mr Kowalski instructed RJ Cole & Partners to take over from Stanley & Partners the conduct of his claims in respect of an eye injury suffered in December 1986.[44] Stanley & Partners had issued a common law action in the District Court for negligence against Mitsubishi in respect of that injury (the eye injury action). Mitsubishi had admitted liability and filed a formal offer to pay $3,000 plus costs. No further substantive steps were taken by RJ Cole & Partners until October 1991 because they did not receive Stanley & Partners’ file.[45]

    [44]   Exhibits P44 and D8. 

    [45]   Exhibits P77 and P107.

14. On 15 February 1991 Mr Dowd wrote to Mr Kowalski saying that he intended to ask Mr Moss for a report and then seek an opinion from a barrister as to the likely outcome of the claim.[46]

    [46]   Exhibit P47.

15. On 9 April 1991 Mr Kowalski underwent a second epidural block and a manipulation under Mr Moss.[47]

    [47]   Exhibit P1.

16. On 17 April 1991 Mr Moss provided a report to RJ Cole & Partners.[48] Mr Moss diagnosed a lumbar disc prolapse.

    [48]   Exhibit P1.

17. Mr Kowalski was absent from work between 9 and 29 April 1991. Mr Moss provided medical certificates to Mitsubishi in respect of this absence.[49]

    [49]   Exhibits P53 and P56.

18. On 30 April 1991 Mitsubishi rejected Mr Kowalski’s claim for weekly income maintenance from 9 April 1991 on the ground that the April 1991 incapacity did not arise from the May 1989 injury.[50]

    [50]   Exhibits P54 and P58.

19. On 6 May 1991 Mr Dowd attended on Mr Kowalski. Mr Dowd prepared a typed file note of the attendance.[51] Mr Kowalski instructed Mr Dowd to claim income maintenance for Mr Kowalski’s absence from work in April. Mr Dowd recorded instructions from Mr Kowalski concerning his back. On 8 May RJ Cole & Partners lodged with WorkCover an application for review of Mitsubishi’s decision.[52]

    [51]   Exhibit P59.

    [52]   Exhibit P61.

    Mr Bell’s opinion

20. On 16 July and 12 August 1991 Review Officer Lovering heard the review of Mitsubishi’s decision and the review was adjourned to 2 September 1991.[53]

    [53]   Exhibit P64.

21. On 16 July 1991 Mr Dowd wrote to barrister Michael Bell briefing him to attend at an adjourned pre-trial conference on 25 July and to provide an opinion concerning liability and quantum.[54]

    [54]   Exhibit P71.

22. On 25 July 1991 Mr Bell advised Mr Kowalski and Mr Dowd that it was likely that a court would assess contributory negligence by Mr Kowalski of at least 25 per cent, the likely range of an assessment of damages was $20,000 to $25,000 which would be reduced to $16,000 to $19,000 after allowing for contributory negligence and that Mr Kowalski should consider settling in the range $15,000 to $20,000 plus costs.[55]

    [55]   Exhibit P76.

23. On 29 July 1991 Mr Dowd wrote a letter to Mr Kowalski referring to Mr Bell’s advice that Mr Kowalski should consider settling at $15,000 plus costs and Mr Dowd said that he thought a trial judge would award $15,000 absent further surgery.[56]

    [56]   Exhibit P76.

24. On 1 August 1991 Mr Bell provided a written opinion to Mr Dowd in which he expressed the opinion that Mr Kowalski had good prospects of success on liability but was likely to be found contributorily negligent and it was unlikely that the percentage contribution would be any less than 25 per cent.[57] Mr Bell confirmed his opinion about the assessment of damages conveyed on 25 July. Mr Bell volunteered the additional opinion that, on an assessment under section 43 of the Act, Mr Kowalski would be likely to be awarded a percentage of between 20 and 25 per cent of the $75,100 cap and on this basis would receive between $15,000 and $18,750. Mr Bell pointed out that the entitlement under section 43 was very similar to the likely result if Mr Kowalski should prove successful in his common law claim.

    [57]   Exhibit P76.

25. On 16 August 1991 Mr Kowalski left work and was subsequently diagnosed on 23 August by Dr Jagermann, a psychiatrist, as suffering dysthymia and anxiety.[58] He did not return to work and his employment was ultimately terminated by Mitsubishi in March 1994.

    [58]   Exhibit P1.

26. On 2 September 1991 Mr Dowd attended on Mr Kowalski concerning his workers compensation claim for his nervous breakdown.[59]

    [59]   Exhibit P183.

27. On 2 September 1991 Mitsubishi informed Review Officer Lovering that it now conceded that Mr Kowalski’s April 1991 incapacity resulted from the May 1989 injury.[60] On 6 September 1991 Review Officer Lovering made a determination setting aside Mitsubishi’s 30 April 1991 decision and confirming its new decision that Mr Kowalski was entitled to income maintenance and related medical expenses for 9 to 29 April 1991.[61]

    [60]   Exhibit P92.

    [61]   Exhibit P92.

28. On 25 September 1991, the action was listed for trial to commence on 5 December 1991.

    Preparation for trial

29. On 9 October 1991 Mr Dowd briefed barrister Richard Ward as counsel for Mr Kowalski to appear at the trial.[62]

    [62]   Exhibit P72. 

30. On 22 October 1991 RJ Cole & Partners filed in the District Court a notice of acting for Mr Kowalski in the eye injury action.[63] On 14 November 1991 the action was transferred to the Magistrates Court on their application.[64]

    [63]   Exhibit P108.

    [64]   Exhibit P109.

31. On 20 November 1991 Mr Dowd attended on Mr Kowaski to prepare a consolidated statement.[65] The consolidated statement did not contain any further details concerning the slip on 9 May 1989 or negligence by Mitsubishi.

    [65]   Exhibit P86.

32. On 3 December 1991 Mr Kowalski spoke to Mr Dowd and suggested that Mr Dowd take statements from Gary Hayworth and Peter Doughty.[66]

    [66]   Exhibit P174.

33. On 3 December 1991 Mr Dowd took a statement from Mr Hayworth saying that he fitted trays to the trolleys which hold engines and he believed that it was after Mr Kowalski’s fall. On 4 December Mr Dowd sent the statement to Mr Ward.[67] On 5 December Mr Dowd took a further statement from Mr Hayworth in which Mr Hayworth said that he knew that oil trays were fitted after Mr Kowalski’s accident because he had heard about his accident at the time and that there had often been oil on the floor.[68]

    [67]   Exhibit P87.

    [68]   Exhibits P96.

    Trial before Judge Lee

34. On 5 December 1991 the trial commenced before Judge Lee and continued on 6, 9 and 10 December. Evidence was given by Mr Kowalski, Dr Balkwill, Mr Hone, Mr Moss and Mrs Kowalski. The trial was then adjourned to a date to be fixed.[69]

    [69]   Exhibit P89 Transcript of trial before Judge Lee.

35. During his evidence in chief, Mr Kowalski said that before his accident engine stands were used to support the engine vertically and oil was drained out sideways into a bucket and sometimes spilt on the floor; whereas after his accident rotating engine stands were used in which the oil drained downwards which was a much safer method.[70] Mr Kowalski said that after his accident he saw engine stands fitted with drip trays but he had not seen such drip trays before his accident.[71] In cross-examination, Mr Kowalski said that he could not be definitive that the rotating engine stands were not also used (in addition to the fixed stands) before his accident or that engine stands with drip trays were not also used (in addition to stands without trip trays) before his accident.[72]

    [70]   Exhibit P89 Transcript of trial before Judge Lee, pages 23-35; 65-66.

    [71]   Exhibit P89 Transcript of trial before Judge Lee, page 65.

    [72]   Exhibit P89 Transcript of trial before Judge Lee, pages 125-129.

36. On 14 January 1992 Mr Kowalski telephoned Mr Dowd. Mr Kowalski explained that the existence of a drip tray on the engines would not have affected oil spilled onto the ground during draining because the oil was drained out of the side of the engine beyond the drip tray.[73]

    [73]   Exhibit P100. 

37. On 20 January 1992 Mr Dowd attended on Ivan Robertson, the janitor responsible for the rework area, and prepared a statement by him.[74]

    [74]   Exhibit P72.

38. On 28 February 1992 Mr Dowd wrote to Mr Ward enclosing the black and white photographs.[75]

    [75]   Exhibit P86.

39. On 11 March 1992 Mr Dowd took a detailed statement from Mr Hayworth.[76] Mr Hayworth said that he recalled being requested by the supervisor to fit drip trays to engine stands because Mr Kowalski had slipped on oil in the rework area. He said that there were occasions when he observed oil on the floor and occasions when he directed the janitor to clean up oil spills in the rework area. He said that he did not see oil being drained from sumps but thought that the rotating engine stands would be used rather than the fixed engine stands.

    [76]   Exhibit P105.

40. On 12 March 1992 Mr Dowd took a statement from Peter Doughty.[77]

    [77]   Exhibit P191.

41. On 16 March 1992 the trial resumed and continued on 17 March.[78] Evidence was given by Mr Doughty, Mr Robertson and Mr Hone. Mitsubishi called Bryn Price and Albert Evans, who gave evidence that before May 1989 engine stands generally had drip trays fitted with some exceptions, that generally the rotating engine stands were used to drain oil and that there were procedures for cleaning up oil spills promptly. Judge Lee heard closing addresses and reserved judgment.

    [78]   Exhibit P89 Transcript of trial before Judge Lee.

42. On 30 March 1992 RJ Cole & Partners rendered an account to Mr Kowalski for work in connection with his back injury totalling $18,634.66.[79]

    [79]   Exhibit P165.

43. On 24 June 1992 RJ Cole & Partners filed in the Magistrates Court a notice of acceptance of Mitsubishi’s filed offer.[80]

    [80]   Exhibit P113.

44. On 3 July 1992, Judge Lee dismissed Mr Kowalski’s claim.  Judge Lee said that Mr Kowalski’s case was that Mitsubishi failed to provide stands with drip trays and failed to ensure that spillages of oil were cleaned as soon as reasonably practicable but Judge Lee found that neither allegation had been established, accepting the evidence of Mr Price and Mr Evans. Judge Lee added that Mr Kowalski had not persuaded him that he slipped on oil on 9 May 1989 in the way that he described.[81]

    [81]   Exhibit P102.

    Mitsubishi settlement

45. Baker O’Loughlin on behalf of Mitsubishi and RJ Cole & Partners on behalf of Mr Kowalski then entered into negotiations to settle all claims by Mr Kowalski. It was agreed that Mr Kowalski would be paid $76,000.[82] It was agreed that he would be paid $23,000 in respect of injuries up to 30 September 1987 governed by the former Act and $53,000 in respect of injuries after 30 September 1987 governed by the Act.[83]

    [82]   Exhibits P114 and P155; T1701-1703.

    [83]   Exhibit P155 at 86 and 87.

46. On 31 July 1992 RJ Cole & Partners issued an application in the Industrial Court against Mitsubishi in respect of Mr Kowalski’s injuries governed by the former Act (the Industrial Court action) to act as a vehicle for the making of consent orders pursuant to the settlement.[84]

    [84]   T776-778.

47. On 27 August 1992 a consent order was made by Judge Cawthorne in the Industrial Court action reflecting the settlement in respect of injuries governed by the former Act, ordering payment of $2,000 compensation and incorporating Mr Kowalski’s agreement not to bring proceedings independently of the Act in return for payment of $21,000.[85]

    [85]   Exhibit P116.

48. On 31 August 1992 Mitsubishi paid to RJ Cole & Partners the sum of $23,000 which they placed in their trust account.[86]

    [86]   Exhibit D1.

49. On 31 August RJ Cole & Partners rendered an account to Mr Kowalski for $483.79 in relation to his eye injury.[87]

    [87]   Exhibit D1.

50. On 31 August RJ Cole & Partners transferred $18,634.66 in payment of their 30 March account and on 2 September they transferred $483.79 in payment of their 31 August account.[88]

    [88]   Exhibit D1.

51. On 3 September 1992 a Schedule of Consent Determinations and Notations was signed by Mr Kowalski and Baker O’Loughlin on behalf of Mitsubishi which provided for a section 43 assessment at $7,510 in respect of Mr Kowalski’s back injury and payment of $45,490 in return for a release of all common law liabilities in respect of injuries governed by the Act. It was expressed to be conditional on WorkCover’s approval.[89]

    [89]   Exhibit P118.

52. On 25 September 1992 WorkCover’s Chief Executive refused consent to the settlement.[90] The agreed sum of $53,000 in relation to claims under the Act was never paid to Mr Kowalski and all parties acted on the basis that the settlement of claims under the Act was void.

    [90]   At 86.

53. On 16 June 1993 Mr Harris appeared on behalf of Mr Kowalski in the Industrial Court action and consented to an order by Judge Stanley on the application of Mitsubishi setting aside the consent orders made by Judge Cawthorne on 27 August 1992.[91]

    [91]   T1082.

54. On 25 September 1995 Mr Kowalski filed an application in the Industrial Relations Court seeking the setting aside of the 16 June 1993 order made by Judge Stanley. In due course the application was heard by Judge McCusker. Evidence was given by Mr Kowalski, Mr Harris and Mr Dowd.

    Professional negligence action

55. On 31 July 1996 Mr Kowalski filed in the District Court a summons and statement of claim against RJ Cole & Partners and Mr Dowd alleging negligence and claiming damages and an order that they were not entitled to any sum on account of costs in acting for him in the back injury action (the professional negligence action). Mr Kowalski subsequently joined the three principals of RJ Cole & Partners (directors of the company carrying on business as RJ Cole & Partners), Russell Cole, Andrew Sim and Philip Harris, as additional defendants. I refer collectively to the company and Messrs Cole, Sim and Harris (and where applicable Mr Dowd) as RJ Cole & Partners.

56. On 1 August 1996 RJ Cole & Partners notified Law Claims of Mr Kowalski’s claim against them.[92] RJ Cole & Partners were insured against professional negligence in respect of claims notified during the 1996/1997 year under the Professional Indemnity Insurance Scheme 1996/1997 (the Scheme) established under section 52 of the Legal Practitioners Act 1981 (SA).

    [92]   Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraph 8.

57. The Scheme provided two layers of insurance against professional negligence.[93] First, practitioners were insured (subject to an excess of $3,000 in the case of a firm) up to a limit of $50,000 (including defence costs) out of a Professional Indemnity Fund (the PI Fund) administered by the Law Society and in particular by Law Claims. Secondly, practitioners were insured (subject to a deductible of $50,000 (including defence costs), being the amount covered by the first layer) up to a limit of $750,000 plus defence costs by five underwriters in defined proportions. Those underwriters included HIH Casualty and General Insurance Ltd (HIH) as to 25 per cent and FAI General Insurance Co Ltd (FAI) as to 10 per cent.

    [93]   Affidavit of Jan Grundy affirmed 14 November 2006 (FDN 196), exhibit JG1.

58. There were several exclusions from the insurance coverage. One exclusion was that under clause 21(6)(h) the Scheme did not provide insurance in respect of any claim to refund, account for, or pay damages calculated by reference to any fee, charge or disbursement rendered or incurred by the firm or the practitioner (the fee recovery exclusion).

59. Law Claims assumed conduct of the defence to the action on behalf of RJ Cole & Partners and Mr Dowd.[94] At trial, RJ Cole & Partners accepted that they were vicariously liable for the conduct of Mr Dowd.[95]

    [94]   Affidavit of Jan Grundy affirmed 14 November 2006 (FDN 196), exhibit JG5.

    [95]   T2062.

60. Law Claims instructed Mr Forrest (now Magistrate Forrest) of Stratford & Co and then Rowell Forrest & Co to act as solicitor for the defendants in the action.[96] Mr Forrest briefed Mr Slattery (now Judge Slattery) to appear for the defendants in the action.

    [96]   Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraph 14.

1. On 11 April 1997 Judge McCusker dismissed Mr Kowalski’s September 1995 application to set aside Judge Stanley’s June 1993 order. Judge McCusker preferred the evidence of Mr Harris over the evidence of Mr Kowalski and found that Mr Kowalski had instructed Mr Harris to consent to the set aside order made by Judge Stanley.

2. On 27 October 1998 Mitsubishi and Mr and Mrs Kowalski executed a Heads of Agreement pursuant to which Mitsubishi agreed to pay $200,000 in full and final settlement of Mr Kowalski’s entitlements to superannuation, sick leave, compensation and damages arising out of or in the course of his employment. Mitsubishi agreed to forego recovery of legal costs owed by Mr Kowalski.[97]

   [97]   Affidavit of Kazimir Kowalski sworn 9 January 2017 (FDN 354), exhibit KK-1, pages 7-9.

3. On 15 March 2001 HIH and FAI were placed into provisional liquidation and on 27 August they were placed into liquidation.[98] Ultimately they entered into schemes of arrangement effective on 30 May 2006.

   [98]   Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 66.

4. Without being exhaustive, Mr Kowalski’s pleading at trial contained three complaints or groups of complaints:[99]

   1. RJ Cole & Partners acted negligently in instituting and prosecuting the back injury action alleging negligence rather than a proceeding for non-economic loss compensation under section 43 of the Act (the section 43 negligence case);

   2.     RJ Cole & Partners failed to adequately plead or prepare the case for trial in the back injury action (the inadequate trial preparation case);

   3.     RJ Cole & Partners acted without authority in the Industrial Court action in June 1993 in consenting to the setting aside of the order made by Judge Cawthorne in August 1992 and other complaints in respect of the conduct of matters relating to the eye injury action (the former Act injury case).[100]

   [99]   Amended statement of claim filed 17 March 2000.

   [100] Paragraphs [10.4].

5. In respect of the section 43 negligence case, Mr Kowalski pleaded that on 21 April 1990 he was enticed by RJ Cole & Partners to instruct them to commence an action for negligence against Mitsubishi under common law instead of a simple action pursuant to section 43 of the Act;[101] the common law action was instituted and heard in the District Court instead of the WorkCover review panel in accordance with the negligent advice of RJ Cole & Partners;[102] on 1 August 1991 Mr Bell provided to RJ Cole & Partners his opinion that under common law his estimate was damages between $16,000 and $19,000 and pursuant to section 43 his estimate was between $15,000 and $18,750;[103] RJ Cole & Partners negligently and improperly instituted the common law action instead of seeking compensation pursuant to section 43 of the Act;[104] Mr Kowalski received no benefit whatsoever from the work undertaken by RJ Cole & Partners in relation to his back injury;[105] and RJ Cole & Partners were barred from recovery of any costs and obliged to repay to him all monies paid on account of costs.[106]

   [101] Paragraph [8].

   [102] Paragraph [13].

   [103] Paragraph [8.14].

   [104] Subparagraph [18(a)].

   [105] Paragraph [19].

   [106] Paragraph [23].

6. In respect of the inadequate trial preparation case, Mr Kowalski pleaded that RJ Cole & Partners failed to ensure that the pleadings were properly drawn,[107] failed to identify the actual or type of witnesses who would be required to establish his claim,[108] and failed to engage an expert witness to take photographs of the correct rework area, carry out an investigation and interview witnesses prior to 14 February 1991;[109] Mr Dowd negligently said at the pre-trial conference on 19 September 1991 that the plaintiff was ready to go to trial and negligently requested on 25 September 1991 that the action be set down for trial;[110] and RJ Cole & Partners failed to obtain a signed consolidated statement from Mr Hayworth prior to trial,[111] failed to instruct Mr Ward to tender the black and white photographs or Mr Ingman’s report,[112] and failed to plead issue estoppel arising from the 6 September 1991 determination by Review Officer Lovering.[113]

   [107] Subparagraph [18(e)].

   [108] Subparagraph [18(h)].

   [109] Subparagraph [18(i)].

   [110] Paragraphs [8.17] and [8.18].

   [111] Paragraphs [8.20] and [18(j)].

   [112] Paragraphs [8.3], [8.22], [18(l)].

   [113] Subparagraph [18(c)].

7. In respect of the former Act injury case, Mr Kowalski pleaded amongst other things that on 16 June 1993 Mr Harris wrongly consented to an order by the Industrial Court setting aside the earlier 27 August 1992 consent order for payment of $23,000 for injuries governed by the previous Act.[114]

   [114] Paragraphs [10.4], [11].

8. On 3 December 2001 the trial of Mr Kowalski’s action (confined to liability) commenced before Judge Anderson in the District Court and proceeded (subject to a long Christmas break) until 21 January 2002. Mr Kowalski called Mr Dowd, Mr Harris, Mr Sim, Mr Bryant and Mr Ward to give evidence (together with a witness from each of WorkCover, Mitsubishi and Mitsubishi’s solicitors) and gave evidence himself. Both parties provided written closing submissions and made oral closing submissions.

9. On 21 March 2002 Judge Anderson delivered reasons for judgment dismissing the action. He ordered that Mr Kowalski pay the defendants’ costs of action on a party/party basis.

   Notice of Appeal

10. On 3 April 2002 Mr Kowalski lodged for filing in the Supreme Court a notice of appeal against the judgment accompanied by an application for waiver of the filing fee supported by an affidavit. In the affidavit, he deposed that he only had $900 deposited in credit union accounts. He provided by facsimile evidence of those balances.[115]

    [115] Affidavit of Kazimir Kowalski sworn 7 April 2016 (FDN 322), exhibit KK-1, page 210.

11. On 4 April 2002 action number 467 of 2002 was allocated to the appeal. The application for waiver and supporting affidavit were designated FDN 1 and FDN2.

12. On 5 April 2002 the matter was listed for mention at 10.00 am. Master Kelly made an order on 5 April 2002 refusing the application for waiver of fees. Master Kelly gave the following reasons:

    I have carefully perused the judgment Mr Kowalski wants to appeal and his complaint about it as set out in his affidavit and notice of appeal.

    Quite frankly I cannot detect any arguable ground of appeal against what appears to be careful, apparently unbiased and well reasoned judgment.

    The decision was based heavily upon issues of credibility and I likewise see no arguable attack upon those findings.

13. On 15 April 2002 Mr Kowalski filed in the District Court an application to set aside the judgment under rule 84.12 of the District Court Civil Rules 1987 (SA) on the ground that RJ Cole & Partners had wrongly advised him that he had a common law claim when such claims were statute barred by subsection 54(1) of the Act.[116] This ground was misconceived because section 54 of the Act did not bar a common law claim but merely confined it within strict limits.

    [116] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraph 49.

14. On 19 April 2002 Mr Forrest sent by facsimile to Mr Kowalski a letter dated 18 April estimating costs of action at $135,000 and inquiring as to his intentions as to satisfying the costs liability.[117] Mr Kowalski replied saying that he had lodged an appeal against Judge Anderson’s judgment but was waiting to hear from the Chief Justice about certain aspects of it.

    [117] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 42.

15. On 24 April 2002 the parties appeared before Judge Anderson on Mr Kowalski’s application to set aside the judgment, which was dismissed.[118] Mr Kowalski referred to an appeal he had lodged and said that his waiver application had been refused by a Master and referred to the Chief Justice.

    [118] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 43.

16. On 23 May 2002 Mr Forrest on behalf of the Supreme Court spoke by telephone to Errol Surman.[119] Mr Surman told Mr Forrest that Mr Kowalski had filed a notice of appeal and waiver application, the waiver application was referred to a Master who refused the application; it had now been referred to the Chief Justice; and at present no notice of appeal had been filed. Mr Forrest informed Law Claims of this discussion.[120]

    [119] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 45.

    [120] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388).

17. On 18 June 2002 Mr Forrest wrote to Mr Kowalski summarising the communications in April 2002 about an appeal referred to above, noting that a notice of appeal had not been served, saying that an application for an extension of time would be resisted and inquiring about Mr Kowalski’s intentions concerning payment of the defendants’ costs of action.[121]

    [121] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 46.

18. On 19 August 2002 Mr Forrest sent by facsimile to Mr Kowalski a letter dated 16 August noting that no appeal had been filed and addressing costs. Mr Kowalski replied that he had filed a notice of appeal on 3 May 2002 with a waiver application which had not been finally determined and the notice of appeal was therefore not formally before the Full Court at present.[122]

    [122] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 52.

19. By October 2002 Mr Kowalski had complained to the Ombudsman about Master Kelly’s refusal to waive the filing fee for the appeal.[123]

    [123] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 54.

20. On 22 May 2003 Mr Kowalski filed a fresh application pursuant to rule 84.12 to set aside the judgment on the same ground as his April 2002 application and the additional ground that Judge Anderson had no jurisdiction to order costs against him. In his supporting affidavit he referred to the fact that he had lodged an appeal against the judgment but said that so far the Registrar had refused to waive his filing fee and the notice of appeal had not been formally accepted. On 26 May Judge Anderson dismissed this application.[124]

    [124] ffidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraph 70.

21. On 4 July 2006 Mr Forrest was appointed a Magistrate. In October 2006 Rowell Forrest’s file was returned to Law Claims, which instructed Minter Ellison to act for the defendants in lieu of Rowell Forrest. Rowell Forrest’s file was provided to Minter Ellison.[125]

    [125] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraphs 20-23.

22. On 20 November 2006 Mr Kowalski filed a fresh application pursuant to rule 84.12 to set aside the judgment on the same ground as his April 2002 application. On 21 March 2007 Judge Shaw dismissed this application.[126]

    [126] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), pages 13-14.

23. On 26 May 2007 Mr Kowalski lodged for filing an application to correct certain paragraphs of Judge Anderson’s reasons for judgment on two grounds not advanced at trial and not presently relevant.[127] On 13 June 2008 Master Norman gave a direction to the Registrar pursuant to rule 53 of the District Court Civil Rules 2006 (SA) not to issue the application without leave of the Court. Mr Kowalski sought such leave, which was refused by Master Norman on 4 September 2008. On 3 December 2008 Judge Nicholson dismissed Mr Kowalski’s appeal against that decision.  

    [127] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), paragraphs 85-88.

24. On 15 February 2013, the scheme administrators of the HIH and FAI schemes gave notice to creditors to submit their final Estimation of claims by 2 September 2013.[128] Law Claims lodged an estimation on 5 March 2013 which did not include an allowance for any future defence costs or liability to Mr Kowalski arising out of an appeal against Judge Anderson’s judgment.[129] 

    [128] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, page 90.

    [129] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GKF, pages 118-121.

25. The scheme administrators of HIH have paid to Law Claims 47 per cent of its admitted proof and the scheme administrators of FAI have paid to Law Claims 65 per cent of its admitted proof.[130] Reports issued by the administrators in the third quarter of 2016 foreshadowed that only small, if any, future dividends were likely.[131]

    [130] econd Affidavit of Grant Feary affirmed 1 May 2017 (FDN 395), paragraph 3.

    [131] Affidavit of Grant Feary affirmed 24 April 2017 (FDN 388), exhibit GFK, page 79.

    Application for permission  

26. 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) prohibiting Mr Kowalski from instituting further proceedings in a prescribed court without permission of the Supreme Court and staying subject to listed exceptions all existing proceedings in a prescribed court unless permission is granted by the Supreme Court (the vexatious litigant orders).

27. On 7 February 2017 I directed Mr Kowalski to give notice to RJ Cole & Partners of his application for permission and to invite them to make submissions if they wished.

28. On 18 February 2017 Mr Kowalski notified RJ Cole & Partners of his application for permission. On 10 March 2017 Law Claims assumed conduct on behalf of RJ Cole & Partners of their response to the invitation to make submissions.

    Hearing

29. The application was heard on 5 May 2017.

30. I received from Mr Kowalski affidavits by him sworn on 7 January, 7 April and 12 December 2016 and 9 January, 13 February, 26 April and 2 May 2017 together with the defendants’ closing submissions before Judge Anderson dated 21 January 2002.

31. I received affidavits by Grant Feary, Deputy Director of Law Claims, sworn on 24 April and 1 May 2017 together with a “Book of Filed Documents” containing 30 documents filed or generated in the District Court action. I subsequently received an affidavit by Amanda Adamson, RJ Cole & Partners’ solicitor in respect of the permission application, sworn on 17 May 2017.

32. RJ Cole & Partners made submissions against the grant of permission. While RJ Cole & Partners contended that no appealable error is disclosed by Mr Kowalski’s notice of appeal, they made only limited specific substantive submissions about Mr Kowalski’s complaints about Judge Anderson’s reasons for judgment. Given their role to assist the Court they were entitled to select the matters on which they addressed. Nevertheless, it remains my duty to consider whether Mr Kowalski has reasonable prospects of success on appeal independently of any submissions that RJ Cole & Partners chose to make.

33. RJ Cole & Partners contended that no appeal was instituted in May 2002 and in any event Mr Kowalski does not have any prospects of establishing special circumstances justifying the reinstatement of any appeal and does not have any prospects of obtaining an extension of time to file a fresh appeal. In this respect, RJ Cole & Partners rely not only on what they characterise as extraordinary delay but also on prejudice which they contend they would suffer if permission is granted. I consider these matters after first considering Mr Kowalski’s prospects of success on the merits of an appeal.

    Reasonably arguable case on appeal on the merits

    Section 43 negligence case

    Liability

34. Mr Kowalski contends that Judge Anderson erred in rejecting his case that RJ Cole & Partners were negligent by instituting and prosecuting the back injury action alleging negligence rather than a proceeding for non-economic loss compensation under section 43 of the Act.[132] 

    [132] General ground of appeal 2; Specific grounds of appeal 8, 16, 59 and 72.

35. Due to the differences identified at [10] above, in a case (such as Mr Kowalski’s) in which the employer has accepted that the worker suffered a compensable disability and a specialist doctor has expressed the opinion that the worker has suffered a permanent residual disability as a result of the injury, subject only to the comparative quantum, there are very substantial advantages to the worker in making a claim for non-economic loss compensation under section 43 of the Act as opposed to instituting a common law action seeking damages for negligence. A claim for compensation would involve no liability issues and merely involve an assessment of quantum and ordinarily the worker would recover his or her own legal costs and would not be at risk of having to pay the employer’s legal costs in respect of the assessment. By contrast, a common law action for damages would involve liability issues of negligence and causation (unless admitted by the employer) and the worker would be at risk of having to pay all of his or her own legal costs (which ordinarily would be much higher than the costs of an assessment of quantum of non-economic loss compensation) as well as a majority of the employer’s legal costs (the ratio of party/party to solicitor/client costs) if unsuccessful on liability. In addition, ordinarily a common law action in which liability is disputed may be expected to take much longer and entail much greater stress and anxiety for the worker than an assessment of quantum of non-economic loss compensation.

36. In relation to quantum, if a worker succeeds in a common law action in proving negligence by the employer, frequently the worker will be exposed to the risk of a reduction of damages awarded by reason of contributory negligence by the worker. No such potential reduction applies to the quantum of non-economic loss compensation under the Act. Particularly taking into account the risk of reduction of common law damages by reason of contributory negligence, the quantum of damages awarded when liability is established may be expected to be greater in some cases and less in other cases than the quantum of non-economic loss compensation assessed under the Act.

37. A worker is entitled to seek and obtain an assessment of non-economic loss compensation under the Act and then also to seek damages for negligence, but this will only be of utility if and to the extent that the quantum of damages awarded for negligence exceeds the quantum of non-economic loss compensation under the Act.

38. Turning to the circumstances of Mr Kowalski’s case, it is reasonably arguable that, before instituting proceedings, a competent solicitor practising in the field of employment injuries would have advised Mr Kowalski of the advantages of claiming non-economic loss compensation under the Act as opposed to bringing a common law action for damages. It is reasonably arguable that such advice would necessarily have encompassed advice concerning:

    ·the prospects of success in proving negligence by the employer;

    ·the prospects of contributory negligence by the worker being found and a likely apportionment;

    ·an estimate of costs that would be incurred in instituting and prosecuting a common law action and estimate of costs payable to the employer if the action were unsuccessful;

    ·an estimate of costs that would be incurred in claiming non-economic loss compensation and whether they would ultimately be payable by the employer;

    ·an estimate of the time for the determination of a claim for non-economic loss compensation compared to determination of a common law action;

    ·an estimate of the likely quantum awarded in a common law action if successful compared to the likely quantum assessed for non-economic loss compensation.

39. It is reasonably arguable that a competent solicitor practising in the field of employment injuries would have advised Mr Kowalski that, after obtaining a specialist medical report or reports concerning Mr Kowalski’s back injury, a letter should be written to Mitsubishi claiming that Mr Kowalski’s back injury was the result of Mitsubishi’s negligence and, if Mitsubishi denied liability, a claim for non-economic loss compensation should first be pursued, reserving the ability to review whether an action for negligence should be instituted before the expiration of the limitation period in May 1992 depending on the quantum obtained on the compensation claim and the other matters referred to at [15] above. This would have had the additional advantage that the costs incurred in relation to quantum (such as obtaining medical reports) would be met by Mitsubishi as part of the expenses incurred in connection with the compensation claim but such work could be used subsequently in any common law action.

1. When Mr Dowd wrote to Mr Kowalski on 21 April 1990 Mr Dowd said that for a common law claim, unlike a claim pursuant to the Act, damages can be awarded for pain, suffering and loss of enjoyment of life. That advice was incorrect because as noted at [7] to [10] and [112] above compensation for the same matters could be awarded under section 43 of the Act without proof of fault. Mr Dowd did not refer at all to a claim for non-economic loss under section 43 or to the potential disadvantages and risks of a common law action as opposed to a claim for compensation under the Act. Mr Dowd’s suggestion of a common law claim was volunteered rather than being responsive to a desire expressed by Mr Kowalski to bring a common law claim.

2. On 1 May 1990, after taking relatively shallow instructions from Mr Kowalski in relation to matters bearing on proof of negligence by Mitsubishi, Mr Dowd advised Mr Kowalski that RJ Cole & Partners should institute common law proceedings against Mitsubishi and leave them on file until they received medical reports from Mr Fry and Mr Hone.

3. On 20 August 1990 Mr Dowd instituted the back injury action, having received a report from Mr Hone (but not Mr Fry) in which Mr Hone expressed the opinion that Mr Kowalski suffered permanent residual disability as a result of his back injury. Mr Dowd did not before instituting the action give Mr Kowalski advice concerning any of the matters referred to at [115] above.

4. It is reasonably arguable that Mr Dowd’s failure to give advice concerning the above matters was negligent.

5. On 2 November 1990 Mitsubishi filed a defence denying liability, specifically denying that Mr Kowalski slipped on 9 May 1990, denying that there was oil on the floor and affirmatively pleading that it provided engine stands with trays to catch oil drained from engines.[133]

   [133] Exhibit P71.

6. It is reasonably arguable that, if Mr Dowd had not been negligent before instituting the action, he was negligent in not giving advice concerning the above matters when it was clear that Mitsubishi was denying liability.

7. On 15 February 1991 Mr Dowd wrote to Mr Kowalski saying that he intended to ask Mr Moss for a report and then to seek an opinion from a barrister as to the likely outcome of the claim. On 16 July 1991 Mr Dowd wrote to barrister Michael Bell briefing him to provide an opinion concerning liability and quantum. Apart from pre-trial conferences which were merely adjourned, no substantive steps were taken in the action apart from Mr Dowd’s receipt of the report from Mr Moss in April 1991. Mr Dowd did not seek any opinion from Mr Bell concerning the quantum of an assessment of non-economic loss compensation under section 43 of the Act.

8. On 1 August 1991 Mr Bell provided his written opinion in which he expressed the opinion that Mr Kowalski was likely to be found contributorily negligent with an apportionment of at least 25 per cent against him and the likely range of an assessment of damages was $16,000 to $19,000 after allowing for contributory negligence. Mr Bell volunteered the additional opinion that, on an assessment under section 43 of the Act, Mr Kowalski would be likely to be awarded between $15,000 and $18,750. Mr Bell further volunteered the observation that the entitlement under section 43 was very similar to the likely result if Mr Kowalski were successful in his common law claim.

9. It is reasonably arguable that a competent solicitor practising in employment injuries would have had advised Mr Kowalski at this point (if not earlier) of the disadvantages and risks of proceeding with the common law action and that it was preferable that Mr Kowalski proceed instead with a claim for non-economic loss compensation under the Act. At this point, the action had not yet been set down for trial and only limited steps had been taken by the parties (pleadings and discovery). No preparation for trial had been undertaken by RJ Cole & Partners and in particular no detailed statement had been taken from Mr Kowalski in relation to Mitsubishi’s alleged negligence and no statements had been taken from any other witnesses.

10. Mr Dowd was questioned by Mr Kowalski early in his evidence in chief about his letter of 21 April 1990.[134] When asked whether he considered a claim under section 43, Mr Dowd said that at that stage he was simply saying to Mr Kowalski that he wanted to discuss the potential of a common law claim and there was no suggestion one way or the other whether he considered a claim under section 43. Mr Dowd reiterated in his evidence the statement in the letter that the primary difference between a common law claim and a claim pursuant to the Act was that Mr Kowalski could be awarded damages for pain, suffering and loss of enjoyment of life in the instance of a common law claim. Mr Dowd said that to that extent he was considering the difference between a common law claim and a workers compensation claim. This evidence was consistent only with Mr Dowd not having considered a claim for pain and suffering, loss of amenities of life or any other loss or detriment of a non-economic nature under section 43.

    [134] T136/16-139/20.

11. Mr Dowd was asked by Mr Kowalski whether he ever at any stage gave him advice about proceeding under section 43 and he initially said no and then said that he could not recall doing so. Mr Dowd said that he would have thought that Mr Kowalski was better off bringing a common law claim because he would be able to get an award of damages for pain and suffering and loss of enjoyment of life if he succeeded in a common law claim.[135] At no point in his evidence did Mr Dowd say that he gave advice to Mr Kowalski about proceeding under section 43 instead of or before proceeding with a common law claim or any of the matters referred to at [115] above. RJ Cole & Partners did not plead that any such advice was given.

    [135] T137/13-24.

12. Mr Dowd was later asked by Mr Kowalski about Mr Bell’s opinion of 1 August 1991 in which Mr Bell gave an estimate for damages at common law of $16,000 to $19,000 compared to his estimate of compensation under section 43 of $15,000 to $18,750.[136] Mr Dowd was asked why, given those figures, he did not proceed under the Act instead of under common law. Mr Dowd said that, if WorkCover was presented with a range of 10 per cent ($7,510) to 15 per cent ($11,250) of the statutory cap of $75,100, it would probably have chosen the lower percentage of 10 per cent or alternatively the midpoint being 12.5 per cent ($9,387). Mr Dowd did not say that he thought at the time that it was likely that a range of 10 to 15 per cent would be assessed on a section 43 assessment, nor did he say that he expressed any such opinion either to Mr Bell or to Mr Kowalski. If hypothetically Mr Dowd had held the opinion at the time that Mr Bell’s assessment was wrong and was double a likely assessment, he would have been duty bound to discuss the matter with Mr Bell and with Mr Kowalski. The fact that he did not do so coupled with the manner in which he gave his evidence leads to a very strong inference that he did not hold such an opinion at the time. Mr Dowd also said that he thought that Mr Bell was a bit tough at 25 per cent for contributory negligence. However, again he did not express any such view to Mr Bell or Mr Kowalski.

    [136] T380/21-382/34.

13. For the reasons given above, it is reasonably arguable that Mr Dowd should have turned his mind to the relative advantages and disadvantages of seeking an assessment of non-economic loss compensation under section 43 as compared to issuing common law proceedings before he instituted the action in August 1990. It is reasonably arguable that he should have advised Mr Kowalski at that point about those relative advantages and disadvantages. It is reasonably arguable that, even if he had considered that the quantum of damages awarded on success in a common law action would exceed the quantum of non-economic loss compensation, he should have written to Mitsubishi to ascertain whether liability would be disputed and, if liability were not accepted, should have first pursued a claim for non-economic loss compensation in any event. It is reasonably arguable that, even if he had considered that likely damages awarded on success in a common law action would be in the order of $15,000 and likely non-economic loss compensation would be in the order of $7,500, after taking into account potential legal costs of both parties in the order of $25,000 that Mr Kowalski would have to pay if unsuccessful, and the likely difference between party/party and solicitor client costs in the order of $5,000 upon success in a common law action, it was still preferable to proceed to seek an assessment of non-economic loss compensation.

14. Mr Dowd was only “cross-examined” very briefly by counsel for RJ Cole & Partners and was not asked any questions concerning this topic.

15. After Mitsubishi and RJ Cole & Partners on behalf of Mr Kowalski negotiated a settlement in August 1992 of all claims by Mr Kowalski in respect of injuries governed by the Act (post 30 September 1987 injuries) in return for payment of $53,000, a figure of $7,510 was attributed to non-economic loss compensation in respect of Mr Kowalski’s back injury in the Schedule of Consent Determinations dated 3 September 1992. RJ Cole & Partners in closing address before Judge Anderson contended that the figure of $7,510 was the value of a section 43 claim by Mr Kowalski and in turn RJ Cole & Partners adopts the same submission before me. However, this was merely a notional allocation as part of the negotiated figure of $53,000 rather than representing the true value of a non-economic loss compensation claim: indeed RJ Cole & Partners advised Mr Kowalski at the time that it was in his best interest to minimise the figure attributed to non-economic loss compensation in case he should suffer a future injury or aggravation of the injury to his back and should wish to make a claim in respect thereof.[137] In the circumstances, the attribution of the figure of $7,510 in the Schedule of Consent Determinations had no probative value at all as to the true value of a non-economic loss compensation claim

    [137] Exhibit P171.

16. In his reasons for judgment, Judge Anderson dismissed Mr Kowalski’s section 43 negligence case because his Honour made an explicit finding that Mr Dowd advised Mr Kowalski that he had obvious prospects for a larger award at common law than under section 43.

17. Judge Anderson said:

    I return to the Plaintiff’s plea that the Defendants were negligent in not instituting proceedings in the Industrial Court rather than in this Court at common law. He asserted that to do so would extinguish any exposure he would have for costs.

    It was the evidence of Mr Dowd that the prospects for a larger award in this Court were obvious in what he, in his experience, adjudged to be a good case. I accept his evidence that he discussed this with the Plaintiff who agreed to proceed in this Court…I reject the evidence of the Plaintiff that he was not consulted on this topic.[138]

    [138] At [105]-[106]. (Emphasis added.) 

18. The finding by Judge Anderson that Mr Dowd advised Mr Kowalski that he would receive a larger award at common law than under section 43 is clearly wrong. Mr Dowd gave no such evidence, it was not pleaded by RJ Cole & Partners and it was not put in cross-examination to Mr Kowalski.

19. I observe for completeness that Judge Anderson’s statement that Mr Kowalski gave evidence that he was not consulted on this topic is also incorrect: there was no call for Mr Kowalski to give such evidence given that there was no suggestion by RJ Cole & Partners or Mr Dowd that Mr Kowalski was consulted on the topic.

20. Judge Anderson also appears to have made a finding that Mr Bryant gave evidence that the respective likely awards at common law and under section 43 were discussed with Mr Kowalski or perhaps that the prospects for a larger award at common law were obvious. The passage omitted from the second paragraph extracted at [133] above reads as follows:

    It was also the evidence of Mr Bryant of counsel who was called by the Plaintiff. Mr Bryant considered the Plaintiff [sic] to be a very experienced personal injuries solicitor and rejected suggestions by the Plaintiff, to his own witness, that Mr Dowd was not capable of drawing pleadings or deciding on jurisdiction without the advice of counsel.[139]

    [139] At [106].

21. All of the evidence adduced before Judge Anderson indicated that Mr Bryant’s role in the back injury action was confined to seeking an adjournment of the pre-trial conference because it was cheaper for Mr Dowd to brief Mr Bryant to attend in Adelaide than to travel himself from Christies Beach to do so. Mr Bryant gave no evidence at all about the quantum of damages likely to be awarded if the common law action was successful or about the quantum of non-economic loss compensation likely to be assessed on a section 43 claim. Mr Bryant’s evidence was incapable of corroborating any evidence (if it had been given) by Mr Dowd of advice given to Mr Kowalski on these topics. Even Mr Bryant’s evidence about the competence of Mr Dowd was confined to a statement that “I would have considered [him to be] quite competent to draw the pleadings. It wouldn’t have surprised me if he had sent me some pleadings containing – which he had settled himself.”[140]

    [140] T1917/28-31.

22. It is reasonably arguable that Judge Anderson’s reliance on the erroneous factual finding that Mr Dowd advised Mr Kowalski that he would receive a larger award at common law than under section 43 vitiates his dismissal of Mr Kowalski’s section 43 negligence case. In any event, Judge Anderson did not refer at this point in his reasons for judgment to the advice of Mr Bell that the likely quantum if Mr Kowalski was successful in the common law action was the same as the likely quantum on a section 43 assessment. Judge Anderson did not refer to the heavy cost penalties that would be suffered by Mr Kowalski if he failed in the common law action as opposed to the likely recovery of his costs on a section 43 assessment.

    Quantum

23. Judge Anderson did not assess the quantum of damages suffered by Mr Kowalski because he concluded that RJ Cole & Partners had not been negligent.

24. Mr Kowalski had pleaded in his statement of claim that RJ Cole & Partners’ negligence caused him to suffer loss being the costs charged by RJ Cole & Partners in respect of the back injury action being $18,634.66 the subject of the March 1992 account. If Mr Kowalski had succeeded on his section 43 negligence case, there appears little doubt that he would have been entitled to recover the costs charged in respect of the back injury action. This would be the amount of the March 1992 bill less a small amount for the work performed in September to October 1989 which related to his workers compensation entitlements. As RJ Cole & Partners prepared a bill in taxable form, it would be an easy matter to determine the quantum of the amount recoverable.

25. Mr Kowalski pleaded that he was ordered by Judge Lee on 3 July 1992 to pay Mitsubishi’s costs of action. However, he did not plead that Mitsubishi ever taxed those costs or that he paid them or that he had an outstanding liability to pay them. I note that the liability to pay any such costs was released by Mitsubishi in 1998 as part of the 1998 Heads of Agreement. In these circumstances, Mr Kowalski does not have sufficient prospects of success to justify the grant of permission under section 39 to seek on appeal any damages or other relief in respect of his liability to Mitsubishi to pay the costs of the common law action.

26. Mr Kowalski pleaded that he suffered other monetary losses but those losses relate to allegations of negligence other than the section 43 negligence case. Mr Kowalski pleaded that he suffered heart muscle damage and psychological damage as a result of the negligence of RJ Cole & Partners but these heads of damage appear on their face to be too remote to be recoverable as part of Mr Kowalski’s section 43 negligence case. Mr Kowalski claimed damages for inconvenience, distress and vexation but this head of damage would not on its face be recoverable as part of Mr Kowalski’s section 43 negligence case.

27. The only head of damages which has sufficient prospects of success to justify the grant of permission under section 39 is the claim for recovery of the costs charged by RJ Cole & Partners in respect of the common law action.

    Conclusion

28. Mr Kowalski’s contention that Judge Anderson erred in rejecting his section 43 negligence case is reasonably arguable and if successful on appeal I consider that an order would be made on appeal that he recover the costs charged by RJ Cole & Partners in respect of the common law action but no other damages.

    Inadequate trial preparation case

    Liability

29. Mr Kowalski contends that Judge Anderson erred in rejecting his inadequate trial preparation case.[141] 

    [141] General ground of appeal 2; Specific grounds of appeal  3, 10, 12, 16, 31, 32, 34, 35 and 72 (FDN 105).

30. Judge Anderson’s conclusion that Mr Dowd was not negligent in pleading and preparing the matter for trial are principally encompassed in the following passages:

    He [Mr Dowd] sought medical reports, but issued proceedings without receiving them all. He did so without showing the final statement of claim to the plaintiff. Whilst, with the benefit of hindsight, such a step may have been prudent, to proceed in that way is neither negligent nor otherwise a breach of this second retainer.

    …

    The Plaintiff’s present Statement of Claim and evidence contains many complaints about how that matter was prepared initially, how it was conducted through the pre-trial stages and at trial, how other evidence and witnesses were not obtained, and that it was listed and heard when the Plaintiff was not emotionally stable…

    …

    …No issue estoppel can have arisen because of the nature of the matter in contention, namely causation, and because of the manner in which the Review was concluded. Despite all that the Plaintiff said at trial, in those proceedings, whether or not there was an incident on 9 May 1989 was not in issue. Thus, on this basis there was no issue at large in the common law proceedings which had previously been determined by a tribunal so as to give rise to an issue estoppel.

    …

    In my opinion, the plaintiffs common law claim from commencement to conclusion, was conducted in a proper manner by Mr Dowd and those whom he used as counsel and particularly Mr Ward at trial.

    When looking at the conduct of a file by an experienced and busy common law solicitor, as Mr Dowd was, and as Mr Bryant of counsel offered in evidence, it might nearly always be possible to find that more diligence may have been appropriate in certain instances or at certain times throughout the life of the matter. However, a shortcoming in diligence on occasions is a long way short of establishing a breach of the duty solicitor owes to his client.

    …

    The Plaintiff has failed to show, in relation to the second retainer, that the Defendants or any of them, are in breach of their contract of retainer with him or have been negligent in the performance of the duty to him.

31. Before instituting the back injury action in August 1990, Mr Dowd only took superficial instructions from Mr Kowalski relevant to alleging negligence by Mitsubishi causing Mr Kowalski’s back injury. It is reasonably arguable that a competent solicitor would have taken detailed instructions from Mr Kowalski and, given that it was common ground between Mr Kowalski and Mitsubishi at trial, would have ascertained that the question whether oil trays were or were not installed on engine stands was a red herring or peripheral at best.  The real issues were whether in May 1989 fixed engine stands were used to any extent to drain oil horizontally out of engines or rotating engine stands were exclusively used to drain oil vertically out of engines; whether oil drained out of engines using rotating engine stands spilt on the floor on occasion; and whether Mitsubishi implemented an adequate system to clean up spills as soon as reasonably practicable after they occurred. It is arguable that a competent solicitor would have sought corroborating evidence in respect of the draining of oil out of engines and the cleaning up of oil spills, including from fellow Mitsubishi employees working in or observing the rework area, either by seeking details of fellow employees from Mr Kowalski or, if that did not produce satisfactory corroboration, engaging a private investigator to make inquiries of potential witnesses.

1. Given the extent of the cost risk faced by Mr Kowalski if unsuccessful in the action, and particularly also given the alternative of a non-economic loss compensation claim considered above, if a common law action was to be pursued, it was critical that Mr Kowalski’s prospects of success be maximised by obtaining any available corroborative evidence.

2. In addition, it was important that all aspects of alleged negligence by Mitsubishi be pleaded in the statement of claim because the late inclusion of an additional particular of negligence was liable to reflect adversely on Mr Kowalski’s credibility and suggest that he was making it up to bolster his case. As it transpired, when it became apparent at trial that the existence of oil trays was largely a red herring and the critical question was the use of fixed as opposed to rotating engine stands, Mr Ward expressed extreme concern to Mr Dowd that Mr Kowalski appeared to be changing his case and this reflected adversely on his credibility. While the standard of care is not to be judged with the wisdom of hindsight, this was entirely predictable in August 1990.

3. On 2 November 1990 Mitsubishi filed a defence specifically denying that Mr Kowalski slipped on 9 May 1989 and that there was oil on the floor and affirmatively pleading that it provided engine stands with trays to catch oil drained from engines. It is arguable that, if the steps referred to in the previous paragraph had not been taken before issuing a summons, a competent solicitor would have taken such steps on becoming aware that Mitsubishi was denying negligence and denying that Mr Kowalski slipped on oil at all.

4. Mr Dowd did not take any such steps until two days before the start of trial, when Mr Kowalski gave him the names of Mr Hayworth and Mr Doughty. While Mr Dowd took statements from Mr Hayworth on 3 and 5 December 1991,[142] he did not address the question of fixed as opposed to rotating engine stands and took only superficial details concerning cleaning up of oil spills. Ultimately, when Mr Dowd took a detailed statement from Mr Hayworth on 11 March 1992 after the first four days of trial and shortly before the trial was to resume,[143] it became apparent that Mr Hayworth was not in a position to address the critical questions and his evidence would have been of only limited assistance to Mr Kowalski’s case. Mr Dowd took a statement from Mr Doughty on 12 March 1992 but his evidence also did not address the critical issues and was of only limited assistance.

   [142] Exhibit P96.

   [143] Exhibit P105.

5. It is reasonably arguable that RJ Cole & Partners were negligent in failing to take adequate steps to plead negligence by Mitsubishi, take detailed instructions from Mr Kowalski relevant to Mitsubishi’s negligence and seek corroborative evidence from other Mitsubishi employees in August 1990 or alternatively in November 1990 or alternatively before the matter was listed for trial. At the trial of the professional negligence action, it would have been difficult for the trial judge to determine what would have occurred if such steps had been taken but in any event it is reasonably arguable that, in the absence of taking such steps, RJ Cole & Partners should not have pursued the action and Mr Kowalski received no value from the work performed by them in connection with the action.

6. Mr Kowalski made other complaints about the preparation for and conduct of the trial by RJ Cole & Partners but, for one reason or another, I do not consider that it is reasonably arguable in some cases that they involved negligence and in other cases that they are material to the result. One complaint was that Mr Dowd did not provide the black and white photographs to Mr Ward until February 1992 (after Mr Kowalski had completed his evidence) and did not instruct Mr Ward to tender them. While it is reasonably arguable that a competent solicitor would have enquired of Mr Bryant about the photographs and provided them to Mr Ward (together with a statement by Mr Kowalski about when and where they were taken and what they depicted) when Mr Ward was briefed, the photographs relate only to the drip trays and there is no basis to find that their tender would have made any difference to the result.

7. Another complaint was that RJ Cole & Partners failed to rely on issue estoppel arising from the 6 September 1991 determination by Review Officer Lovering. Whether any issue estoppel arose involves complex issues of law but, assuming that an issue estoppel arose from that decision in respect of Mr Kowalski’s back injury, it was confined to the issue whether Mr Kowalski suffered a back injury at work in May 1989 and did not extend to the issue whether that injury was the result of negligence by Mitsubishi. The real issue in the back injury action was not whether Mr Kowalski had suffered a back injury at work but rather whether it was the result of his slipping on oil and whether the presence of the oil was a result of Mitsubishi’s negligence. Reliance on issue estoppel would not have affected the result because Judge Lee found that Mitsubishi was not negligent.

   Quantum

8. If Mr Kowalski had succeeded on appeal on his inadequate trial preparation case, the damages assessment would have been the same as that in respect of his section 43 case.

9. The only head of damage which has sufficient prospects of success to justify the grant of permission under section 39 is the claim for recovery of the costs charged by RJ Cole & Partners in respect of the common law action.

   Conclusion

10. Mr Kowalski’s contention that Judge Anderson erred in rejecting his inadequate trial preparation case is reasonably arguable and if successful on appeal on this issue I consider that an order would be made that he recover the costs charged by RJ Cole & Partners in respect of the common law action but no other damages.

    Former Act injury case

11. Mr Kowalski contends that Judge Anderson erred in rejecting his former Act injury case.[144] 

    [144] Specific grounds of appeal 36-43, 50-52 (FDN 105).

12. As noted above, a major part of Mr Kowalski’s former Act injury case was that Mr Harris consented on 16 June 1993 to setting aside the 27 August 1990 consent orders without having obtained Mr Kowalski’s instructions to do so.

13. During the trial of the professional negligence action, Mr Kowalski issued a subpoena to Mr Harris and foreshadowed his intention to call him to give evidence.[145] On 7 December 2001 the defendants contended that an issue estoppel had arisen out of Judge McCusker’s 1997 decision dismissing Mr Kowalski’s set aside application precluding Mr Kowalski from asserting that he had not instructed Mr Harris to consent to the June 1993 order. Judge Anderson ruled that an issue estoppel arose and Mr Kowalski was precluded from asking Mr Harris any questions on the topic.[146]

    [145] T830.

    [146] T660-662.

14. On 10 December 2001 Mr Kowalski asked Judge Anderson to reconsider his decision because there was not an identity of parties: Mitsubishi being Mr Kowalski’s opponent in the proceeding before Judge McCusker and RJ Cole & Partners being Mr Kowalski’s opponent in the proceeding before Judge Anderson.[147] RJ Cole & Partners argued that, if there was no issue estoppel, it was an abuse of process for Mr Kowalski to seek to litigate again as against RJ Cole & Partners an issue that had been decided against him as against Mitsubishi. Mr Kowalski contested this and contended that in any event he had fresh evidence being a memorandum by Mr Harris dated 10 June 1993 which had not been available to him during the hearing before Judge McCusker and which he only obtained after RJ Cole & Partners made discovery in the professional negligence action. Mr Kowalski said that in the memorandum Mr Harris recorded that he did not have instructions from Mr Kowalski to consent to setting aside Judge Stanley’s order whereas Mr Harris had given evidence before Judge McCusker that he obtained those instructions prior to 10 June 1993.

    [147] T664.

15. On 11 December 2001 Judge Anderson published a ruling in which his Honour accepted that he had been in error in ruling on 6 December that an issue estoppel had arisen. However, Judge Anderson ruled that to allow Mr Harris to be called would be an abuse of process because the issue about which he would be giving evidence was the very issue determined by Judge McCusker in 1997 and it was contrary to policy considerations to allow the prospect of conflicting decisions on the point.

16. The question whether it is an abuse of process to seek to litigate an issue against an opponent when that issue has previously been decided as against a different opponent raises complex issues. The cases relied on by Judge Anderson were cases in which the earlier determination was a final determination giving rise to res judicata and issue estoppel as between the parties to the litigation.[148] Judge McCusker’s decision was an interlocutory decision that did not give rise to res judicata or issue estoppel. It is reasonably arguable that Judge Anderson erred in making the ruling because Judge McCusker’s decision was interlocutory; or alternatively that there was no abuse of process and Mr Kowalski was suing RJ Cole & Partners for wrongly consenting to the order made by Judge Stanley; or alternatively because Mr Kowalski had fresh evidence in the form of the memorandum which had not been reasonably available to him during the hearing before Judge McCusker.

    [148] Reichel v Magrath (1889) 14 App Cas; Connelly v Director of Public Prosecutions [1969] AC 1254; Wilson v Commonwealth of Australia [1999] FCA 1308; Rippon v Chilcotin [2001] NSWCA 142.

17. However, even if Mr Kowalski succeeded in establishing a breach of retainer by RJ Cole & Partners wrongly consenting to the order made by Judge Stanley, prima facie the loss suffered by Mr Kowalski would have been the loss of the $23,000 that had been paid by Mitsubishi pursuant to the original 27 August 1992 order. The 1992 settlement of claims by Mr Kowalski under the previous Act (pursuant to which Mitsubishi made the payment of $23,000) was superseded by the 1998 settlement embodied in the Heads of Agreement pursuant to which Mitsubishi paid to Mr Kowalski a total sum of $200,000. In the circumstances, as events had transpired by the time of trial before Judge Anderson, Mr Kowalski had not suffered loss as a result of any wrongful consent by RJ Cole & Partners. While Mr Kowalski challenges the validity of the Heads of Agreement entered into on 27 October 1998 on the ground of non est factum, and while he challenges the validity of the clause contained in the Heads of Agreement entered into on 27 October 1998 on the ground that it offended against section 119 of the Act, assuming (without deciding) that both challenges are good, Mr Kowalski does not challenge those provisions of the first Heads of Agreement under which Mitsubishi paid the sum of $200,000.

18. I conclude that, although Mr Kowalski has reasonable prospects of establishing appealable error, it would not result in an alteration to the formal judgment by Judge Anderson.

19. Mr Kowalski made other complaints as part of his former Act injury case but, for one reason or another, I do not consider that it is reasonably arguable in some cases that they involved negligence and in other cases that they are material to the result.

    Other complaints

20. Mr Kowalski made other complaints about Judge Anderson in his notice of appeal lodged in April 2002, including allegations of apprehended bias. I do not consider that these complaints are reasonably arguable.

    Reinstatement or fresh appeal

21. Mr Kowalski seeks permission to apply to reinstate the appeal which he contends was instituted in April 2002 or to file a fresh appeal in the same terms.

22. RJ Cole & Partners contend that no appeal was instituted in April 2002 because the notice of appeal was neither filed nor served and there is nothing to reinstate.

23. As at April 2002, rule 95.01 of the Supreme Court Civil Rules 1987 (SA) relevantly provided:

    (1)All appeals to the Full Court as of right or after leave has been granted shall be instituted by filing and serving a notice of appeal…

    (2)A notice of appeal forthwith shall:

    (a)be served on all parties directly affected by the appeal;

    (b)     where the Court or Tribunal appealed from is other than the Supreme Court, be lodged with a proper officer of that court or tribunal.

    Filing of notice of appeal

24. There are indications pointing both ways whether the appeal was instituted insofar as it was required to be filed.

25. On the one hand Master Kelly declined to waive the filing fee which under ordinary practice is treated as a precondition to receiving a document for filing and the notice of appeal was not allocated an FDN.

26. On the other hand, ordinarily upon lodgement for filing of a notice of appeal the Court would not allocate an action number to the appeal until the filing fee was either paid or waived. The decision whether to waive the filing fee is an administrative decision made before the exercise of judicial power is enlivened by the filing of the notice of appeal: the decision on waiver is not an order of the court but an administrative action. An appeal is incapable of being listed for hearing before the appeal is instituted and the exercise of judicial power is enlivened.

27. In the present case, the court record discloses that an action number (467 of 2002) was allocated to the appeal on 4 April 2002 being the day after the day on which the notice of appeal was lodged for filing. The matter was listed for hearing on 5 April 2002 and on that day an order was made by Master Kelly. These steps indicate that the judicial power of the Court was enlivened and the appeal was treated as having been instituted.

28. In addition, subsection 130(2) of the Supreme Court Act 1935 (SA) provides that:

    The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.

29. Subsection 130(2) defines the criteria to be considered on an application for remission or reduction of a fee, namely whether the party is unable without financial hardship to pay the fee on account of poverty or there is some other proper reason to remit or reduce the fee. Where the criterion that the party is unable without financial hardship to pay the fee is satisfied, it is not part of the role of the Court in deciding whether to remit or reduce the fee to undertake an assessment of the prospects of success of the action or appeal lodged for filing.

30. In Pearce v Ryan,[149] Debelle J heard an application for an extension of time in which to appeal and for a waiver of the filing fee in the inherent jurisdiction of the Court. Debelle J considered that there was inherent power in the Court to waive fees which was enlivened by the prejudice a party would suffer if the party is impecunious and will otherwise be denied justice by pursuing a meritorious claim. Debelle J considered that it was necessary to consider the merit of the appeal to decide whether to exercise the inherent jurisdiction. However, in Lyberopoulos v Svilans,[150] Lander J held that the Court has no such inherent power to waive fees imposed by regulation.

    [149] (Unreported, Supreme Court of South Australia, Debelle J, 4 February 1997).

    [150] [2001] SASC 254.

31. Regardless of the position before 13 January 2002, when subsection 130(2) of the Supreme Court Act 1935 (SA) came into force, it superseded any inherent power. Thereafter, the question of waiver has been governed by that subsection and the criterion for waiver has been financial hardship and not the merit of the appeal.

32. In 2002, there were other procedures under which the Court could decline to accept a document for filing. Rule 102.09 provided that, if the Registrar considered that a document presented for lodgement for the purposes of an appeal was an abuse of process or vexatious, the Registrar was to seek the direction of the Court whether to file it or refuse to file it without the leave of the Court first obtained. The decision whether filing should be refused on the ground of abuse of process or vexation was an administrative decision rather than a judicial decision.[151] Similarly, after a document was accepted for filing, rule 3.01(a) recognised the inherent power of the Court to dismiss a proceeding which was vexatious or an abuse of the process of the Court. The decision to do so was a judicial decision.[152]

    [151] Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota) [2016] SASCFC 8 at [32] per Kourakis CJ, Blue and Nicholson JJ.

    [152] Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota) [2016] SASCFC 8 at [32] per Kourakis CJ, Blue and Nicholson JJ.

33. If the power to remit fees conferred by subsection 130(2) was to be exercised by reference to the financial position of the applicant and not by reference to the applicant’s prospects of success in the action or appeal, the combination of the following facts indicates that Master Kelly was exercising judicial power of the nature akin to the power conferred by rule 3.01(a) and the notice of appeal was treated as filed and the appeal was treated as instituted. Those facts are that an action number was allocated when the matter was referred to Master Kelly; Master Kelly listed the matter for hearing on 5 April 2002; Master Kelly was ostensibly satisfied as to Mr Kowalski’s financial position; Master Kelly considered and referred to Judge Anderson’s reasons for judgment rather than confining consideration to the notice of appeal; and Master Kelly decided that there was no arguable ground of appeal by reference to Judge Anderson’s reasons for judgment.

    Serving of notice of appeal

34. Rule 95.01(1) provided that appeals “shall be instituted by filing and serving a notice of appeal”. Read literally and in isolation, this suggests that an appeal that has been filed is not instituted until it has also been served.

35. However, rule 95.01(2) required the notice of appeal to be served on all parties directly affected by the appeal and on the Registrar of the Court below and required that this be done “forthwith”, which meant as soon as reasonably practicable.

36. Rule 95.02 required that (subject to the power of the Court to extend time) an appeal must be instituted within 14 days after the judgment appealed from. If on its proper construction rule 95.01(1) provided that an appeal was not instituted until served on the last of the parties directly affected and on the Registrar of the Court below, this would give rise to both uncertainties and unsatisfactory results. The question whether a party is “directly affected by the appeal” involves the exercise of an evaluative judgment and there would be uncertainty whether the appeal had been instituted when an appellant did not serve a party who the appellant considered was not directly affected but that question later arose. In addition, appellants may well overlook the requirement to serve the Registrar of the Court below and the failure of an appellant to do so might not be discovered until a long time after the filing of the notice of appeal. Particularly in a case in which there are multiple respondents, the appellant might comply with subrule 95.01(2) by serving the respondents forthwith (as soon as reasonably practicable) but this may well be outside the required 14 days notwithstanding compliance with subrule 95.01(2).

37. Taking into account the context and evident purpose of rule 95.01(1) as well as its language, it is reasonably arguable that the reference therein to serving the appeal is a reference to the obligation of the appellant to serve the appeal on the persons named in subrule 95.01(2) rather than providing that an appeal is not instituted until all such persons have been served. It is reasonably arguable that Mr Kowalski instituted an appeal against Judge Anderson’s judgment in May 2002.

    Consequences if appeal was instituted

38. If the appeal was instituted notwithstanding the above matters, subrule 95.11(3) provided that, unless an appeal had been set down within six months from its institution, it lapsed by force of that rule. If this occurred, Mr Kowalski could seek an extension of time under that rule but he would have to first establish special circumstances. Alternatively, he could seek an extension of time under section 48 of the Limitation of Actions Act 1948 (SA) in which event he would have to establish that it was in the interests of justice that an extension of time be granted.[153]

    [153] Calvaresi v Lawson (1995) 184 LSJS 147 at 153-154 per Lander J (with whom Cox and Perry JJ agreed).

1. If the appeal was not instituted, Mr Kowalski could file a fresh appeal but he would need to seek an extension of time in which to do so.

2. Under either vehicle, common issues of delay and prejudice must be considered. I turn to those issues before returning to this question.

   Delay

3. A period of 15 years has elapsed since Mr Kowalski lodged his notice of appeal for filing. I first consider the delay per se as a factor relevant to Mr Kowalski’s prospects of obtaining an extension of time before considering prejudice.

4. RJ Cole & Partners contend that the delay in itself is fatal and the delay is compounded by the fact that between 2002 and 2008 Mr Kowalski made applications in the alternative to an appeal by way of challenge to Judge Anderson’s judgment.

5. This is not a case in which an appellant takes no steps within the appeal period or for a lengthy time thereafter to lodge a notice of appeal for filing or in which the respondent was unaware that the appellant had lodged a notice of appeal for filing or otherwise wished to challenge the judgment.

6. Mr Kowalski lodged within the requisite 21 days a notice of appeal for filing on 3 April 2002. I consider that Master Kelly erred in making the order of 5 April 2002 as a matter of power, as a matter of procedural fairness and/or on the merits.

7. As to power, for the reasons given above, on an application for waiver of fees, Master Kelly was required to consider Mr Kowalski’s financial position and was not entitled to consider Mr Kowalski’s prospects of success on the appeal.

8. As to procedural fairness, if Master Kelly had power to consider Mr Kowalski’s prospects of success on the appeal, the prospects of success could not be determined on the face of the notice of appeal and Master Kelly had regard to the reasons for judgment of Judge Anderson. Master Kelly was therefore obliged to inform Mr Kowalski and give him the opportunity of making submissions as to the merits of the appeal and indeed it would have been necessary to refer to documents over and above Judge Anderson’s reasons for judgment such as the pleadings. In Kronen v Commercial Motor Industries Pty Ltd (T/as CMI Toyota),[154] the Full Court said:

   A refusal must be capable of being made without the need to ascertain extraneous circumstances or to rely on arguable questions of law. If it were otherwise, it would be necessary to accord the party filing the document procedural fairness and the power exercised would become judicial and not administrative.[155]

   [154] [2016] SASCFC 8.

   [155] At [22] per Kourakis CJ, Blue and Bampton JJ.

9. As to the merits, for the reasons given above, Mr Kowalski had reasonable prospects of success on the appeal.

10. After Mr Kowalski became aware of Master Kelly’s decision, he complained to the Ombudsman without evident success. He could not reasonably be expected to have taken any further action as it was generally considered in 2002 that a refusal to waive fees could not be the subject of either an appeal[156] or judicial review[157] and therefore was not legally challengeable.

    [156] Lyberopoulos v Svilans [2001] SASC 254 at [14]-[15] per Lander J; see also Andrew Garrett Wines Resorts Pty Ltd [2007] SASC 89, (2007) 248 LSJS 349 at [32]-[33] per Perry J.

    [157] Lyberopoulos v Svilans [2001] SASC 254 at [16] per Lander J.

11. The fact that Mr Kowalski made alternative applications (albeit misconceived) over the next six years to challenge Judge Anderson’s judgment, and during the course of those applications often referred to his appeal as being in limbo, only serves to demonstrate that Mr Kowalski wished to appeal against Judge Anderson’s judgment and this was known by RJ Cole & Partners. RJ Cole & Partners knew that Mr Kowalski had lodged a notice of appeal for filing, although they were not served with it.

12. Ultimately, after the vexatious litigant orders were made in January 2014 Mr Kowalski was permitted pursuant to orders made under section 39 to institute proceedings in this Court for which the Registrar waived payment of the filing fee on account of Mr Kowalski’s poverty.

13. Following this, Mr Kowalski sought section 39 permission to apply to file a fresh appeal against the dismissal of the professional negligence action against RJ Cole & Partners.

14. In the above circumstances it is reasonably arguable that delay alone (disregarding prejudice) does not prevent the grant of an extension of time to seek reinstatement of the 2002 appeal (if an appeal was instituted) or to file a new notice of appeal.

    Evidential prejudice

15. RJ Cole & Partners at first contended that, if section 39 permission were granted to Mr Kowalski, they would suffer evidential prejudice because all but one of the P exhibits tendered by Mr Kowalski had been returned by the Court to him and RJ Cole & Partners cannot now locate their copy of parts of the transcript of the trial, including the transcript of the evidence of Mr Dowd, Mr Ward and a portion of Mr Kowalski’s evidence. However, Mr Kowalski returned the Plaintiff exhibits to the Court and the full transcript of the trial was in the possession of the Court.

16. The position therefore is that the whole of the transcript of the trial is available together with all of the Plaintiff and Defendant exhibits subject only to the following minor and irrelevant exceptions:

    1.     Exhibit P193 is missing from the Plaintiff exhibits returned to the Court by Mr Kowalski. The transcript shows that this exhibit is a Supreme Court Bill of Costs for Taxation Form.[158] This document is exhibited to Mr Kowalski’s affidavit sworn on 9 January 2017 (exhibit “KK2”).

    2.     Exhibit D8 is missing from the Defence exhibits returned to the Court by RJ Cole & Partners. However, Mr Kowalski has produced copies of four of the missing six documents contained within Exhibit D8 and the remaining two documents (a memo from Mr Kowalski to Mr Dowd dated 12 November 1991 and a letter from Stanley & Partners to Mr Kowalski dated 8 November 1991) are relevant only to Mr Kowalski’s Former Act injury case in respect of which I have concluded that Mr Kowalski does not have reasonable prospects of success on the merits and I would not grant him permission to appeal.

    [158] T1443.

17. Accordingly, there is no evidential prejudice.

    Financial prejudice

18. RJ Cole & Partners was insured against liability for professional negligence, subject to exclusions including an exclusion in relation to claims for the recovery of fees.[159] HIH and FAI between them underwrote 35 per cent of the insurance coverage in excess of $50,000. Due to the insolvency of those insurers and the terms of the schemes of arrangement, RJ Cole & Partners would have been unable to recover approximately 50 per cent of the amount insured by HIH and approximately 35 per cent of the amount insured by FAI even if Mr Kowalski’s appeal had been heard and determined in 2002 and hence that component of their under-insurance as a result of the insolvency of HIH and FAI is not a prejudice caused by delay.[160] On the other hand, RJ Cole & Partners would now be unable to recover approximately 20 per cent (12.5 per cent in respect of HIH and 6.5 per cent in respect of FAI) of any amount awarded in favour of Mr Kowalski as result of a successful appeal for which HIH and FAI are liable to indemnify RJ Cole & Partners under the terms of the policy. However, this does not apply insofar as Mr Kowalski claims the recovery of fees charged by RJ Cole & Partners or to defence costs expended in defending an appeal in which Mr Kowalski claims the recovery of fees charged by RJ Cole & Partners which are excluded from indemnity.

    [159] Affidavit of Jan Grundy sworn 14 November 2006 (FDN 196), exhibit JG1.

    [160] Second Affidavit of Grant Feary affirmed 1 May 2017 (FDN 395).

19. For the reasons given above, if section 39 permission is granted to Mr Kowalski to pursue an appeal, the appeal will be confined to his section 43 negligence case and his inadequate trial preparation case and the damages he would recover if successful would be confined to recovery of the costs charged by RJ Cole & Partners in respect of the common law action. RJ Cole & Partners would not suffer financial prejudice due to the insolvency of HIH and FAI because they were not indemnified against liability to repay costs charged to a client.

20. RJ Cole & Partners contend that they would also suffer prejudice being the cost of obtaining from the Court the trial transcript (2,105 pages). However, the Court would require for the purpose of an appeal (if section 39 permission is granted) the transcript in electronic form and in the circumstances in which Master Kelly made the decision that he did in April 2002 it is appropriate that an electronic version of the transcript be made available to RJ Cole & Partners without charge. RJ Cole & Partners does not identify the cost of obtaining copies of the P exhibits as a financial prejudice, but in any event Mr Kowalski would be required to prepare case books for the appeal, including a copy for RJ Cole & Partners, containing those exhibits that are relevant to such grounds of appeal as Mr Kowalski might be permitted to pursue.

    Improper purpose

21. RJ Cole & Partners contend that the proposed appeal involves Mr Kowalski seeking to re-litigate yet again in respect of the judgment of Judge Anderson in circumstances in which he has over many years unsuccessfully sought to challenge that judgment in alternative ways. RJ Cole & Partners contend that prosecution of an appeal against the background of those other challenges renders Mr Kowalski’s purpose an improper purpose.

22. I reject RJ Cole & Partners’ contention. The alternative challenges were  made by Mr Kowalski in circumstances in which I have concluded that Master Kelly had erroneously found that there was no merit in his proposed appeal. The alternative challenges were misconceived. It does not follow that an appeal is misconceived or without merit and on the contrary I have concluded that Mr Kowalski has a reasonably arguable case on appeal on the merits subject to the issue of delay.

    Conclusion

23. In determining whether to grant section 39 permission to Mr Kowalski to pursue an appeal, it is not my role to decide whether the appeal would succeed or whether Mr Kowalski would be granted the requisite extension of time. My role is to determine whether these matters are reasonably arguable.

24. My assessment is that Mr Kowalski has, on the face of it, sufficient prospects of success in challenging Judge Anderson’s rejection of his section 43 negligence case and inadequate trial preparation case on the merits to justify the grant of section 39 permission subject to the issue of an extension of time.

25. My assessment is that, subject to minimising prejudice suffered by RJ Cole & Partners as a result of the delay, Mr Kowalski has a reasonably arguable case for obtaining an extension of time. That prejudice will be minimised because the appeal would be confined to the issues whether Judge Anderson erred in rejecting Mr Kowalski’s section 43 negligence case and inadequate trial preparation case and the substantive relief available on appeal would be limited to repayment of costs charged by RJ Cole & Partners in respect of the common law action.

26. I return to the procedural question whether, if in principle section 39 permission to proceed should be granted, the permission should be for Mr Kowalski to apply to reinstate the 2002 appeal (if one was instituted) or to file a fresh notice of appeal or both. It is likely that, whichever procedural vehicle were adopted, essentially the same criteria would be applied and the result would be the same. In the circumstances, to avoid a potential procedural lacuna and to ensure that the Full Court can determine the correct procedural vehicle, it is appropriate to give section 39 permission to Mr Kowalski to file an interlocutory application in action 467 of 2002 seeking reinstatement of the appeal (if it is held that an appeal was instituted) and at the same time to file a fresh notice of appeal on the basis that it would be directed that both matters be heard and determined by the Full Court at the same time.

27. I will direct Mr Kowalski to bring forward a draft interlocutory application and draft notice of appeal confined as to grounds and relief sought in accordance with my reasons for judgment. I will hear the parties as to the orders to be made to reflect my reasons for judgment.