Kowalski v Davison - [2006] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KOWALSKI v DAVISON
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Anderson)
28 April 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Appeal from a single Judge of the Supreme Court - application for leave to serve summons on the Chief Executive Officer of WorkCover Corporation and WorkCover Corporation and an application for Judicial Review - whether the Chief Executive Officer of WorkCover Corporation or WorkCover failed to review an ex gratia payment from Mitsubishi Motors Australia Pty Ltd to Mr Kowalski pursuant to s 42A(9) of the Workers Rehabilitation and Compensation Act 1986 (SA) - claims are frivolous and vexatious - appeal dismissed.
Workers Rehabilitation and Compensation Act 1986 (SA) s 42A(1), s 42A(9), s 42A(9)(a), s 46(2), s 63(3aa), s 89A, s 90, s 114, s 119, s 119(1), s 119(2); WorkCover Corporation Act 1994 (SA) s 13; Supreme Court Rules 1987 (SA) r 94.01, r 98, r 102.09; Supreme Court Act 1935 (SA) s 50(1a)(c), referred to.
Kowalski v Mitsubishi Motors Australia Limited [2001] SAWCT 93; Kowalski v Mitsubishi Motors Australia Limited [2002] SAWCT 76, discussed.

KOWALSKI v DAVISON
[2006] SASC 123
Full Court: Doyle CJ, Nyland and Anderson JJ

THE COURT: Mr Kowalski wished to issue a summons out of this Court against Ms Davison, whom he identified as the Chief Executive Officer of WorkCover Corporation of South Australia (“the Corporation”).
The Corporation is continued in existence as a body corporate by the WorkCover Corporation Act 1994 (SA). By s 13 of that Act, its functions include administering the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”).
The Registrar referred the summons to a Master under r 102.09 of the Supreme Court Rules 1987 (SA) (“the Rules”). A Master directed the Registrar not to issue the summons without the leave of the Court having first been obtained.
The Master then heard an application by Mr Kowalski for leave to issue the summons. The Master heard that application and on 10 November 2005 refused leave. The Master held that the summons was frivolous and vexatious and an abuse of the process of the Court.
Mr Kowalski appealed against that decision.
A Judge of this Court dismissed the appeal: Kowalski v Chief Executive WorkCover Corporation and Anor (Ex Parte) [2005] SASC 481.
By this stage the Corporation had also been joined, or purportedly joined, by Mr Kowalski as a party.
Mr Kowalski has appealed to the Full Court against the decision of the Judge.
It may be that the decision of the Judge is an interlocutory order, and that an appeal lies only with leave of the Judge or of the Full Court: see s 50(1a)(c) of the Supreme Court Act 1935 (SA). Leave has not been sought.
As Mr Kowalski is not represented, and in the interests of disposing of all matters, we are prepared to treat his Notice of Appeal as including an application for leave to appeal, if leave to appeal is required. Leave to appeal can be granted by the Full Court: r 94.01 of the Rules.
Mr Kowalski’s summons may be a summons for Judicial Review for the purposes of r 98 of the Rules. In that event leave to serve the summons is also required.
Paragraph 6 of his affidavit of 16 September 2005 suggests that the summons seeks relief by way of Judicial Review, although this is not completely clear. It may be that he merely seeks a declaration or other relief not falling within r 98.
It is convenient to consider the matter on both bases. It is unnecessary to resolve the issue.
We turn to the facts.
They are found in the reasons of the Judge and in the reasons of the Master. We can deal with them briefly.
In October 1998 Mr Kowalski entered into an Agreement with Mitsubishi Motors Australia Limited (“MMAL”) settling a number of claims by Mr Kowalski against MMAL. Under the settlement Mr Kowalski accepted a sum of $200,000 in full and final settlement of any entitlements that he might have against MMAL. We gather that the claims included claims by Mr Kowalski against MMAL under the WRC Act. The Agreement refers to claims for “compensation”, but does not refer to the WRC Act. However, other claims referred to (for example, superannuation entitlements), are clearly not claims under the WRC Act.
We also understand that MMAL is an exempt employer pursuant to s 60 of the WRC Act. Accordingly, under the WRC Act, MMAL makes decisions that would otherwise be made by the Corporation, and MMAL is responsible for payments of compensation under the WRC Act: see s 63 and s 46(2).
Subsections (1) and (2) of s 119 of the WRC Act provide:
119—Contract to avoid Act
(1)     Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.
(2)     Any purported waiver of a right conferred by or under this Act is void and of no effect.
It is common ground that the Corporation did not consent to the Agreement between Mr Kowalski and MMAL.
In the proposed proceedings Mr Kowalski seeks an order that Ms Davison be required to consider whether the Agreement with MMAL “purports to exclude, modify or restrict the operations of” the WRC Act, and if it does, he seeks an order that she determine whether the Agreement “warranted her consent or otherwise”. We proceed on the basis that he seeks a like order as against the Corporation.
Mr Kowalski’s wish is to have the Agreement set aside, at least in part, so that he can make further claims against Mitsubishi under the WRC Act, and possibly on other bases.
In submissions on appeal he referred in particular to s 42A of the WRC Act, which permits the Corporation (here, MMAL) to assess loss of future earning capacity as a capital loss: s 42A(1). Mr Kowalski said that he wanted the Corporation to review the payment of $125,308.57 to him under the Agreement, that sum being described in the Agreement as “an ex gratia payment as compensation for permanent disability”. He relied on s 42A(9)(a) which provides as follows:
(9) The following decisions of the Corporation are not reviewable—
(a) a decision of the Corporation to make or not to make an assessment under this section (but an assessment is reviewable);
That submission assumes, among other things, that MMAL has made an assessment under s 42A(1). It ignores the point that by s 114 of the WRC Act an ex gratia payment cannot reduce or affect compensation paid under the Act.
In proceedings before the Workers Compensation Tribunal, constituted under the WRC Act, a Deputy President of the Tribunal, and subsequently the full bench of the Tribunal, have already determined that the validity of the agreement with MMAL is not affected by s 119 of the WRC Act: see Kowalski v Mitsubishi Motors Australia Limited [2001] SAWCT 93 and [2002] SAWCT 76. If the Tribunal had jurisdiction to make that decision, which was made in proceedings initiated by Mr Kowalski, it is difficult to understand how the proposed proceedings could be competent. But we put that point to one side.
The first difficulty that Mr Kowalski faces is that the Agreement does not purport to make an assessment under s 42A(1). There is no suggestion that the consent of the Corporation was sought as would have been required under s 63(3aa) of the WRC Act, if an assessment was to be made under s 42A(1).
Accordingly, a claim that the Corporation should review the payment under s 42A(9) is doomed to fail, because the payment was not an assessment under s 42A(1). Quite apart from that, the reference in s 42A(9) to a reviewable decision is a reference to a review by the Workers Compensation Tribunal: see s 89A and s 90 of the WRC Act.
It may be that Mr Kowalski claims that the Agreement contravenes s 119 of the WRC Act, to the extent that it purports to be a settlement of claims by him for payment of compensation under the WRC Act.
A short answer to this aspect of the proposed proceedings is, as the Judge said, that the Corporation has no duty or obligation to consider or to decide whether the Agreement between Mr Kowalski and MMAL is an agreement that, by virtue of s 119 of the WRC Act, is void and of no effect unless the Corporation consents to the Agreement. The Agreement has been made between Mr Kowalski and MMAL, and without seeking or relying on the consent of the Corporation. The impact of s 119 on the Agreement is not a matter that the Corporation can determine in a binding manner as between MMAL and Mr Kowalski. The same point applies with even greater force to Ms Davison. Any function that is to be performed under s 119 is to be performed by the Corporation, and not by Ms Davison.
Even if the Corporation were to express its opinion as sought by Mr Kowalski, that opinion would, of itself, have no legal effect on the Agreement.
There is no basis at all upon which this Court can order the Corporation to consider the matters that Mr Kowalski wishes it to consider, nor can it order Ms Davison to do so. If it is open to Mr Kowalski to raise the issue of the application of s 119 of the WRC Act to the Agreement, despite the decision of the Workers Compensation Tribunal, and despite the order of Bleby J prohibiting him from instituting further proceedings against Mitsubishi, the proposed proceedings are not a permissible means of doing so.
Whether the Corporation could bring proceedings in a court under s 119 is another matter. There is no need to decide that. It suffices to say that on the material before us the Court cannot compel the Corporation to express an opinion on the impact of s 119 on the Agreement.
The proposed proceedings raise a claim that is clearly untenable. The claim is frivolous and vexatious.
The Master correctly refused leave for the proceedings to be issued. If leave to serve those proceedings was required under r 98 of the Rules, leave to serve should also have been refused, even if Mr Kowalski should have been permitted to issue his proceedings.
It is not necessary to consider whether or not the order made by Bleby J is another reason for refusing leave to issue the proceedings.
For those reasons, if leave to appeal against the decision of the Judge is required, we refuse leave to appeal on the basis that it is not reasonably arguable that the Judge erred. If the appeal lies as of right, we dismiss the appeal on the basis that the decision of the Judge appealed against is correct.
We add that this appeal, or application for leave to appeal, has been heard in the absence of Mitsubishi, and without hearing any submissions from Mitsubishi. That is the appropriate course to follow because the application before the Master, the appeal to the Judge and the appeal to this Court are all in relation to proposed proceedings that have been presented for filing or issue in this Court. There are no proceedings on foot as between Mr Kowalski and MMAL.