Kowalski v Bourne

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.