Kowalski v Cole; Kowalski v Bourne

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.