Kowalski v Cole; Kowalski v Bourne - [2015] SASCFC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
KOWALSKI v COLE & ORS; KOWALSKI v BOURNE
[2015] SASCFC 169
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
20 November 2015
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - AS OF RIGHT
The appellant appeals or alternatively seeks permission to appeal against judgments of the Full Court of the Industrial Relations Court permanently staying applications by the appellant against legal practitioners.
A preliminary issue arises whether the appellant requires permission to appeal.
The appellant’s applications in the Industrial Relations Court were issued pursuant to section 41 of the Workers Compensation Act 1971 (SA). Section 47 confers a right of appeal to this Court from decisions of the Full Court of the Industrial Relations Court under that Act without any requirement for permission but confined to a question of law.
Section 191(1)(b) of the Fair Work Act 1994 (SA) confers a general right of appeal to this Court against decisions of the Full Court of the Industrial Relations Court on questions of law or fact but only with the permission of this Court.
The preliminary issue is whether the appellant’s right of appeal is governed by section 47 of the Workers Compensation Act or section 191 of the Fair Work Act.
Held by the Court:
1. On its proper construction, clause 2(1) of the First Schedule to the Workers Rehabilitation and Compensation Act 1986 (SA), which continued the operation of the 1971 Act in respect of pre October 1987 traumas, preserves the right of appeal conferred by section 47 of the 1971 Act in relation to all proceedings relating to traumas continued to be governed by the 1971 Act (at [20], [29]-[30]).
2. Section 16(1) of the Acts Interpretation Act 1915 (SA) does not otherwise provide. It preserves both substantive and enforcement or ancillary rights under a repealed Act notwithstanding the repeal (at [23]-[25], [29]-[30]).
3. The appellant does not require permission to appeal (at [32]).
Acts Interpretation Act 1915 (SA) s16; Fair Work Act 1994 (SA) s 8, s 11, s 15, s 92, s 191; Industrial Relations Act 1972 (SA); Workers Compensation Act 1971 (SA) s 21, s 39, s 41, s 47; Workers Rehabilitation and Compensation Act 1986 (SA); First Schedule Cl 2.1, referred to.
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, discussed.
Harrington v Lowe (1996) 190 CLR 311; Maxwell v Murphy (1957) 96 CLR 261; Smith Kline & French Laboratories v The Commonwealth (1991) 194 CLR 194, considered.

KOWALSKI v COLE & ORS; KOWALSKI v BOURNE
[2015] SASCFC 169
Full Court: Kourakis CJ, Blue and Nicholson JJ
THE COURT:

Mr Kowalski has filed notices of appeal against orders of the Full Court of 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.

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Details

Case: [2015] SASCFC 169
Decision Date: 20 November 2015

CaseChat Overview and Summary

This matter concerned appeals by Mr Kowalski to the Full Court of the Industrial Relations Court of South Australia against decisions of a single judge. Mr Kowalski had initiated proceedings against RJ Cole & Partners and Mr Bourne, alleging breaches of section 41(2) of the *1971 Compensation Act* and seeking repayment of costs charged and recovered without court authority under section 41(3) of the same Act. The respondents sought summary dismissal of these claims, which was granted by the first instance judge on grounds including lack of jurisdiction, the claims being untenable, out of time, or an abuse of process. The Full Court, while finding that the judge erred in dismissing the claims on jurisdictional, tenability, or time grounds, upheld the conclusion that the claims constituted an abuse of process, allowing the appeals only to vary the dismissal orders to stays.

The primary legal issue before the Full Court was whether Mr Kowalski had a right of appeal to the Full Court against its own decision, and if so, whether that appeal was confined to questions of law. This question arose because the respondents contended that permission to appeal was required. The Court was required to consider the interplay between section 47 of the *1971 Compensation Act* and section 191 of the *Fair Work Act*, and the general principles governing appeals.

The Court reasoned that section 47 of the *1971 Compensation Act* expressly confers a right of appeal against decisions of the Full Court of the Industrial Relations Court when exercising jurisdiction under that Act. It further determined that section 191 of the *Fair Work Act*, which generally requires permission to appeal from a federal court, had no application to appeals arising from the exercise of jurisdiction under the *1971 Compensation Act*. Consequently, the Court concluded that Mr Kowalski possessed a right of appeal as of right, without needing the Court's permission. However, this right of appeal was limited to questions of law.

Orders

Orders of the court

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Background

Background to the litigation

The Court directed that the question whether permission to appeal is required be determined as a preliminary issue on the basis of written submissions from the parties.Background Between 1988 and 1991, Mr Bourne, then a partner of Stanley and Partners, acted for Mr Kowalski in relation to common law and workers compensation claims in respect of an eye injury suffered by Mr Kowalski in 1986 governed by the 1971 Compensation Act. In 1991, RJ Cole & Partners took over the conduct of those matters. RJ Cole & Partners also acted for Mr Kowalski in relation to common law and workers compensation claims in respect of a back injury suffered by Mr Kowalski governed by the Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Compensation Act). In March 2011, Mr Kowalski filed separate summonses in the Industrial Relations Court of South Australia seeking declarations that RJ Cole & Partners and Mr Bourne respectively breached section 41(2) of the 1971 Compensation Act and seeking orders for repayment by them of monies paid by way of costs charged and recovered without the authority of the Court under section 41(3) of the 1971 Compensation Act. The respondents each filed an application seeking summary dismissal of the summons or an order striking out the summons as an abuse of process. In August 2011, a Judge at first instance summarily dismissed each summons on the ground that the Court had no jurisdiction to hear the claims or they were untenable or out of time or an abuse of process.[1][1] Kowalski v Cole and Sim and RJ Cole & Partners Pty Ltd [2011] SAIRC 61; Kowalski v Bourne [2011] SAIRC 62. Mr Kowalski appealed to the Full Court of the Industrial Relations Court. In May 2015, the Full Court delivered reasons for judgment, holding that the Judge erred in concluding that the Court had no jurisdiction to hear the claims or they were untenable or out of time, but upholding the Judge’s conclusion that the claims were an abuse of process.[2] The Full Court allowed each appeal for the limited purpose of changing the form of the order from one dismissing the application to an order staying it and otherwise dismissed each appeal.The legislation[2] Kowalski v Bourne and RJ Cole & Partners Pty Ltd [2015] SAIRC 17. 1971 to 1987 The 1971 Compensation Act came into operation on 1 July 1971 and was repealed by the 1986 Compensation Act with effect on 30 September 1987. Subsections 41(2) and (3) of the 1971 Compensation Act relevantly provided:(2) No legal practitioner acting for a workman shall be entitled to recover from that workman any costs in respect of any proceedings under this Act or to claim a lien in respect of such costs on or to deduct such costs from any sum awarded as compensation unless those costs have been awarded by the Court.(3) No agreement by a person claiming compensation to pay any amount by way of costs greater than the amount awarded by the Court shall be binding on that person and any amount paid by that person by way of costs in excess of the amount so awarded shall be recoverable by that person as a debt due to him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondents contend that the presumption against retrospective operation of amending legislation does not apply to merely procedural amendments and as to procedural amendments there is a presumption in favour of retrospective operation.[9] These presumptions have no operation in the present case where there are two separate Acts providing for different effects in different circumstances. [9] Maxwell v Murphy (1957) 96 CLR 261 at 267-270 per Dixon CJ; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 at 241-243 per Gibbs J (with whom Menzies, Windeyer and Walsh JJ agreed).Conclusion Section 47 of the 1971 Compensation Act continues to confer a right of appeal against decisions of the Full Court of the Industrial Relations Court when exercising jurisdiction under that Act. Section 191 of the Fair Work Act has no application to such an appeal. Mr Kowalski has an appeal as of right and does not require permission of this Court to appeal. However, his appeal as of right is confined to a question of law.

Ratio Decidendi

Legal Principle Established

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