Kowalski v Cole

This case concerned an appeal to the Full Court of the Industrial Relations Court of South Australia by Mr Kowalski against RJ Cole & Partners. The dispute arose from Mr Kowalski's contention that RJ Cole & Partners had failed to provide him with a bill of costs in taxable form. This followed earlier proceedings where Mr Kowalski had suffered an eye injury in 1986 and a back injury in 1989, both while employed by Mitsubishi Motors Australia Ltd.

The legal issues before the court included whether Mr Kowalski's claim for a bill of costs was out of time and therefore statute-barred, and whether the claim constituted an abuse of process. The court also considered whether RJ Cole & Partners should be granted permission to amend their notice of contention.

Nicholson J, in his reasons, agreed with the analysis of Blue J on most issues but differed on the question of the time limitation. Nicholson J concluded that the appellant's claim was indeed out of time and therefore statute-barred, leading him to uphold that ground in the respondents' Notice of Contention and dismiss the appeal. He also agreed with the Full Court of the Industrial Relations Court that the appellant's claim was vexatious and an abuse of process, finding no material procedural unfairness in that determination.

Despite Nicholson J's conclusion on the time limitation, Blue J, whose account of the history and analysis was adopted by Nicholson J, took a different view on the time limitation issue. Blue J's approach would have led to the appeal being allowed, the orders of the Full Court being set aside, and the matter being remitted to the Industrial Relations Court for determination. However, the ultimate outcome, as stated by Nicholson J, was that permission should be granted to RJ Cole & Partners to amend their notice of contention, the appeal should be allowed, the orders made by the Full Court should be set aside, and in lieu thereof, an order dismissing RJ Cole & Partners’ application to strike out Mr Kowalski’s summons should be made, with the matter remitted to the Industrial Relations Court.