(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Hinton)
24 March 2017
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - RIGHT OF APPEAL
ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA
Appeal against judgment of Full Court of Industrial Relations Court.
The appellant issued a summons in the Industrial Relations Court against the respondent claiming that he breached section 41 of the Workmen’s Compensation Act 1971 by recovering costs in respect of proceedings under the Act in the absence of an order of the Court awarding those costs.
The respondent brought a strike out application on the ground that no reasonable cause of action was disclosed or the proceeding was an abuse of process seeking to relitigate matters previously determined in earlier proceedings.
The Judge summarily dismissed the summons on the ground that the Court did not have jurisdiction to entertain the claim; it was statute-barred in any event; and it was an abuse of process because the appellant was engaging in oppressive and unfair conduct by relitigation of the costs issued.
The Full Court of the Industrial Relations Court held that the Judge erred on the issues of jurisdiction and time limitation. However, the Full Court held that the proceeding was an abuse of process because it was brought for the improper purpose of harassing the respondent and made an order staying the proceeding in lieu of the Judge’s dismissal of it.
The appellant appeals against the judgment of the Full Court on the ground that it erred in law in holding that the proceeding was an abuse of process as brought for an improper purpose. The respondent seeks permission to file a notice of contention that the Full Court erred on the jurisdiction and time limitation issues; erred in failing to hold that res judicata precluded the proceeding; and erred in failing to find that the matter should have been raised by the appellant in previous proceedings and the summons was therefore an abuse of process.
Held:
1. (Per Blue J at [33], [86] and [87], Nicholson and Hinton JJ agreeing)
Permission should be granted to the respondent to file the notice of contention except the res judicata contention.
2. (Per Blue J at [53], Nicholson J agreeing)
The Industrial Relations Court had jurisdiction to entertain the claim.
(Per Hinton J at [144])
The Industrial Relations Court did not have jurisdiction to entertain the claim.
3. (Per Blue J at [60], Hinton J agreeing)
The claim was not statute-barred.
(Per Nicholson J at [115])
The claim was statute-barred.
4. (Per Blue J at [79], Hinton J agreeing)
The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Kowalski v Bourne
Sign in free to access the full text
Details
AGLC
Kowalski v Bourne [2017] SASCFC 24
Case
[2017] SASCFC 24
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the Full Court of the Supreme Court of South Australia by Mr Kowalski against a decision of a single judge. Mr Kowalski had suffered an eye injury in 1986 while employed by Mitsubishi Motors Australia Ltd. He subsequently retained Mr Bourne of Stanley & Partners to pursue claims for workers' compensation and common law damages. After a period of litigation and a change of solicitors, Mr Kowalski was sued by Stanley & Partners for unpaid legal fees. He consented to judgment, which was later paid. Mr Kowalski then sought to recover these costs in the Industrial Court, arguing no order had been made for their payment. This application was dismissed for want of jurisdiction.
The legal issues before the Full Court included whether the doctrine of *res judicata* or *Anshun* estoppel applied to prevent Mr Kowalski from pursuing his claim for repayment of costs, given the prior consent judgment for the legal fees. The court also considered the jurisdiction of the Industrial Court to entertain such an application.
The Full Court, in its decision, upheld the first ground of the Notice of Contention, which related to the application of estoppel principles. The reasoning indicated that the prior consent judgment for the legal fees was determinative of the issue of whether those costs were payable. Consequently, Mr Kowalski was estopped from relitigating the question of whether he was entitled to recover the costs paid to Stanley & Partners. The court found that the Industrial Court lacked the necessary jurisdiction to grant the relief sought by Mr Kowalski.
The Full Court set aside the orders of the Full Court below and substituted an order dismissing Mr Kowalski's appeal from the Judge.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Although the Act was repealed with effect on 30 September 1987 by the Worker’s Rehabilitation and Compensation Act 1986 (SA), under the transitional provisions of the latter Act, the Act continues to apply in respect of a disability attributable to trauma occurring before 30 September 1987.[4][4] Clause 2(1) of the First Schedule. Background In 1986, Mr Kowalski suffered an eye injury while employed by Mitsubishi Motors Australia Ltd (Mitsubishi). This injury was governed by the Act. In January 1988, Mr Kowalski retained Stanley & Partners, and in particular Mr Bourne, to act for him in claims for workers compensation and at common law. In August 1989, Mr Bourne filed a summons in the District Court on behalf of Mr Kowalski against Mitsubishi (the eye injury action). The action was for damages for negligence and in the alternative sought an assessment of the amount to which Mr Kowalski was entitled for workers compensation under the Act. In January 1991, Mr Bourne advised Mr Kowalski that he should file an application in the Industrial Court to finalise Mr Kowalski’s workers compensation claim and prepared an application in the general form and a letter to Mitsubishi’s solicitors for that purpose. In February 1991, Mr Kowalski instructed RJ Cole & Partners to take over from Stanley & Partners the conduct of his eye injury claims and they did so in mid-1991. In February 1991, Stanley & Partners rendered accounts to Mr Kowalski for $2,302.[5][5] All dollar figures are rounded down to the nearest whole dollar. The total included a bill for $150 for unrelated defamation advice In September 1991, Mr Kowalski informed Mr Bourne that he required Stanley & Partners to tax their costs.[6] A bill in taxable form was prepared. In November 1991, Stanley & Partners rendered an account for an additional $4,009 for the costs of preparing the bill in taxable form and some other work not included in the original accounts to charge Mr Kowalski a total of $6,311 as shown in the bill.[6] This was conveyed by RJ Cole & Partners acting for Mr Kowalski. In July 1992, RJ Cole & Partners filed an application in the general form in the Industrial Court to finalise Mr Kowalski’s workers compensation claims in respect of the eye injury and other injuries governed by the Act (the 1992 workers compensation proceeding). In January 1993, Stanley & Partners filed in the Magistrates Court an action against Mr Kowalski for $6,311 plus costs. Mr Kowalski signed a consent to judgment for the total claim and Stanley & Partners entered judgment for $6,684. In July 1993, Mr Kowalski paid that amount to Stanley & Partners. In April and again in November 1995, Mr Kowalski applied unsuccessfully in the Magistrates Court to set aside the consent judgment. In December 1996, Mr Kowalski filed an application for directions in the 1992 workers compensation proceeding seeking repayment of costs paid in respect of proceedings under the Act on the ground that no order had been made for payment by Mr Kowalski of costs to Stanley & Partners. In January 1997, Judge McCusker dismissed Mr Kowalski’s application for want of jurisdiction.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I agree with Blue J for the reasons he gives refusing permission to pursue ground four and dismissing ground five of the Notice of Contention. Conclusion I would uphold the first ground of the Notice of Contention, set aside the orders of the Full Court and substitute an order dismissing the appeal from the Judge.