Kowalski v Davison & Anor

[2006] HCATrans 545

[2006] HCATrans 545

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A9 of 2006

B e t w e e n -

KAZIMIR KOWALSKI

Applicant

and

JULIA DAVISON (CHIEF EXECUTIVE WORKCOVER CORPORATION)

First Respondent

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.07 AM

Copyright in the High Court of Australia

GUMMOW J:   Following mediation the applicant compromised a claim for workers compensation with his former employer by entering into a “Heads of Agreement”, consequent upon which consent orders were made in the Workers Compensation Tribunal of South Australia (“the Tribunal”). The applicant subsequently failed in proceedings before the Tribunal and the Full Bench of the Tribunal to have parts of the Heads of Agreement set aside by reason of s 119 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”), which relevantly provides:

“(1)     Any agreement or arrangement entered into without the consent of the [WorkCover Corporation of South Australia] that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.”

The applicant now seeks an order for mandamus requiring the first respondent to consider whether the Heads of Agreement purports to exclude, modify or restrict the operation of the Act, contrary to s 119. The applicant’s summons was referred by a Registrar of the Supreme Court of South Australia to a Master, who directed that the summons not be issued without the leave of the Court having been obtained. Following a hearing, the Master refused leave to serve the summons. This decision was affirmed by Duggan J, and also by the Full Court (Doyle CJ, Nyland and Anderson JJ). It was held by both Duggan J and the Full Court that the Act does not impose a duty or obligation on either the WorkCover Authority of South Australia, or the first respondent as Chief Executive thereof, to determine whether the Heads of Agreement has this effect. Accordingly, mandamus could not issue. The summons was dismissed as frivolous and vexatious.

The application for special leave to appeal alleges that the Full Court made various factual and legal errors, and denied the applicant natural justice. However it does not disclose any error in the construction of the Act by Duggan J and the Full Court, which was correct. Since there was no duty in respect of which mandamus could issue, it was open to dismiss the summons in the manner which ensued. There are no prospects of success on any appeal to this Court. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.09 AM THE MATTER WAS CONCLUDED