Kowalski v Layton - [2006] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KOWALSKI v LAYTON
[2006] SASC 292
Judgment of The Honourable Justice Perry
21 September 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
The plaintiff filed a notice of appeal to a judge from the order of a master who had refused leave to appeal to the Full Court from the order of a judge who had in turn refused leave under s 39 of the Supreme Court Act 1935 for the filing of a notice of appeal against the dismissal by the Legal Practitioners Disciplinary Tribunal of a complaint by the plaintiff against a legal practitioner - held that the notice of appeal was incompetent and should be struck out either on the basis that it had been filed without leave having been given under s 39 or on the ground that it had no reasonable prospect of success.
Legal Practitioners Act 1981 s 86(1); Supreme Court Act 1935 s 39(1)(a), referred to.
Commonwealth Bank of Australia and Ors v Heinrich (No 2) [2003] SASC 436, considered.

KOWALSKI v LAYTON
[2006] SASC 292
Civil

PERRY J. These proceedings were instituted by Mr Kowalski on 22 December 2005 by the filing of a purported notice of appeal in this Court pursuant to s 86(1) of the Legal Practitioners Act 1981. That section gives a right of appeal to the Supreme Court against a decision of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) made under the Act.
The decision of the Tribunal followed the hearing of a complaint by Mr Kowalski relating to the conduct of Ms Layton QC, as she then was,[1] in the course of proceedings in which she appeared as counsel for Mitsubishi Motors Australia Ltd (“Mitsubishi”) which had, in turn, brought proceedings against Mr Kowalski which resulted in an order made by Bleby J on 19 April 2005.
[1] Since appointed a judge of this Court. For the purposes of this judgment, I will continue to refer to her as Ms Layton.
Bleby J’s order, inter alia, prohibited Mr Kowalski from instituting:
… further proceedings whether civil or criminal in a prescribed court as defined in s 39(6) of the Supreme Court Act 1935 against the plaintiff [Mitsubishi] or any corporation related to the plaintiff or any present or former employee or agent of the plaintiff, without leave of the court.
The order of the Tribunal was made on 15 December 2005. The Tribunal dismissed the charges brought by Mr Kowalski, finding that they were vexatious.
Following the purported institution of the appeal to this Court against the order of the Tribunal, Ms Layton applied for an order that the appeal be struck out, on the basis that Mr Kowalski had failed to obtain leave to institute the appeal, as required by the order of Bleby J.
The application to strike out the appeal was heard by Besanko J. In a judgment delivered on 3 February 2006, he dismissed the appeal as incompetent. He published reasons in which he held that the institution of the appeal was caught by the prohibition in the order of Bleby J, and leave was required before the appeal was brought. No leave having been given, the appeal was incompetent.
In a notice for specific directions filed on 7 February 2006, Mr Kowalski applied to the court for:
1.General directions.
2.Leave to file his notice of appeal to the Full Court against the judgment of His Honour Justice Besanko …
Accompanying the notice for specific directions was an affidavit of Mr Kowalski to which was attached the proposed notice of appeal. There is no doubt that the proposed notice of appeal targeted the orders made by Besanko J. The opening words of the proposed notice of appeal are:
The Appellant Hereby Appeals to the Full Court pursuant to r 95.01 of the Supreme Court Rules 1935 (sic) against the orders and judgment or ruling of His Honour Justice Besanko of the Supreme Court in action number 1639 of 2005 pronounced on 19 December 2005 …
The application for leave to appeal to the Full Court from Besanko J’s orders was heard by Besanko J, who, on 17 February 2006, refused leave to appeal. In the course of short reasons, Besanko J said:
This is not an application for leave under Bleby J’s order of 19 April 2005. Mr Kowalski asserts that he does not need leave under that order and that I am wrong in deciding that he does.
This is an application for leave to appeal under s 50(1a)(c)(ii) of the Supreme Court Act 1935 and not r 94.01 of the Supreme Court Rules 1987.
That section of the Supreme Court Act provides that there is to be no appeal without the leave of the judge or of the Full Court from any interlocutory order or interlocutory judgment.
Besanko J continued:
In one sense, as a result of my decision, no further action can be taken by Mr Kowalski without the leave envisaged by Bleby J. At the same time, it is my decision that Mr Kowalski seeks to challenge. However, I do not need to pursue this issue any further because, assuming Mr Kowalski has a right to apply for leave, in my opinion there are no grounds upon which it should be granted.
Mr Kowalski then sought leave pursuant to s 39(1)(a) of the Supreme Court Act 1935 to file a notice of appeal against the decision of the Tribunal. There is an irregularity in the formalities of his application to that end, in that a notice for specific directions signed by Mr Kowalski seeking leave in those terms is within the court file, but is not numbered or indexed. It appears to have been processed by the Registry, as it is endorsed with a note indicating that it would be heard by a Master at a stated time on 19 April 2006.
At all events, the application came before Judge Lunn. A fiat records that he heard Mr Kowalski in person on that day and reserved his decision.
In reasons for decision delivered on 10 May 2006, Judge Lunn recited the fact that:
On 3 February 2006 Besanko J dismissed the appeal on the grounds that it was incompetent as leave had not been obtained pursuant to the Order under s 39 of the Supreme Court Act …
He went on to say:
[4]Subsequently the appellant issued an application in this action seeking leave under s 39 to institute the appeal.
For the reasons which he then set out, Judge Lunn refused leave to file the proposed notice of appeal.[2] At the same time, he ordered:
Time for any appeal against this order is extended to 21 days from today.
[2] Although Judge Lunn’s reasons and the fiat of his order refusing leave to file the notice of appeal wrongly refer to “the notice of appeal exhibited to … [Mr Kowalski’s] … affidavit sworn on 23 February 2006”, the error was picked up and corrected in the sealed order, which correctly dates the affidavit as sworn on 7 February 2006.
By a notice of appeal filed on 15 May 2006 [FDN 13], Mr Kowalski appealed to a single judge of the Court against the orders made by Judge Lunn on 10 May 2006.
The filing of the notice of appeal was met by a notice for specific directions filed on behalf of Ms Layton on 23 May 2006, in which she sought an order:
That the appellant’s appeal issued on 15 May 2006 be dismissed as incompetent on the basis that the appellant failed to obtain leave of the Supreme Court pursuant to s 39 of the Supreme Court Act 1935 … before issuing his appeal.
I heard the application to dismiss the appeal on 16 June 2006, when Mr Kowalski appeared in person and Ms Layton was represented by Mr Soulio and Mr Fountain.
During the course of the hearing before me there was some discussion as to just what application was before me.
There is no doubt that I was hearing an application to strike out the purported appeal against the order made by Judge Lunn on 10 May 2006 refusing leave to appeal from the decision of Besanko J. The basis upon which the application by Ms Layton was argued was that leave to appeal was necessary under s 39 of the Supreme Court Act for an appeal to be instituted from the order of Judge Lunn.
Although the points taken in argument by Mr Kowalski are not entirely clear, I think that the principal argument advanced by him, as best I can understand it, tracks back to the initial notice of appeal which he filed on 22 December 2005 [FDN 2] being a purported appeal against the decision of the Legal Practitioners Disciplinary Tribunal, rather than the purported notice of appeal filed by him on 15 May 2006.
On the authority of the decision of Debelle J in Commonwealth Bank of Australia and Ors v Heinrich (No 2),[3] he contended that the appeal which he lodged on 22 December 2005 against the decision of the Tribunal, was nothing more than a continuation of legal proceedings, and the order made by Bleby J under s 39 of the Supreme Court Act did not apply to the continuation of legal proceedings, as opposed to their institution.
[3] [2003] SASC 436.
That contention cannot be supported by the decision of Debelle J. Relevantly, Debelle J’s decision related to an appeal by Mr Heinrich against a s 39(1) order. The point which arose was whether leave was required under s 39(1) to appeal against the making of an order under that section.
In the course of the reasons delivered by Debelle J in that case, he observed:
[8]The prohibition in the order under s 39(1) which was made on 12 September prohibits Mr Heinrich from “instituting further proceedings”. Unlike the provisions in some other jurisdictions which enable orders to be made preventing vexatious litigants from prosecuting legal proceedings, s 39 does not authorise prohibiting a person from continuing legal proceedings. It merely prohibits the person from instituting legal proceedings. An example of a provision prohibiting continuing legal proceedings is s 21 of the Supreme Court Act 1986 of Victoria which requires a person declared to be a vexatious litigant to obtain leave to continue or to commence any legal proceedings. The question, therefore, is whether the filing of a notice of appeal constitutes the commencement of legal proceedings. There is a body of opinion to the effect that it does: In re Vernazza;[4] Braeside Bearings Pty Ltd v H.J. Brignell & Associates (Boronia);[5] Cheney v Spooner;[6] In re Crittendon; Ex parte The Law Institute of Victoria.[7] However, it is arguable that the filing of the notice of appeal is no more than a continuation of a legal proceeding. There is considerable force in that view, particularly in a case such as this where Mr Heinrich is the defendant. It seems unjust to require a defendant to obtain leave to appeal if adversely affected by a judgment in an action he did not institute.
[9]There are also practical reasons why it is inappropriate to hold that leave is required under s 39(1) to institute an appeal against a decision made pursuant to s 39 subjecting the appellant to an order under that section. They are set out in par 29 of the reasons of Chernov JA in Kay v Attorney-General[8] and I respectfully adopt them.
[10]For these reasons, although, as a general rule, an appeal may constitute the institution of legal proceedings, an exception should be made in the case of an appeal from an order made pursuant to s 39(1) of the Act. I expressly limit this conclusion to an appeal against orders made under s 39(1). There are compelling reasons to conclude that all other appeals should be regarded as the institution of legal proceedings. (my emphasis)
[4] [1960] 1 QB 197 at 209-210.
[5] [1996] 1 VR 17 at 19.
[6] (1929) 41 CLR 532 at 536-537, 538-539.
[7] [1958] VR 101 at 102.
[8] [2000] 2 VR 436.
It will be seen from the part of that quotation which I have highlighted, that the decision of Debelle J was expressly limited to an appeal against orders made under s 39(1). It does not apply to any other kind of appeal, as to which there is a considerable body of authority, some of which is cited by Debelle J, and with which I agree, in favour of the view that the filing of a notice of appeal is the institution of new proceedings.
In this case, the proceedings in this Court commenced with the filing of a purported notice of appeal against a decision of the Tribunal. It was not an appeal against an order made under s 39(1). It follows that it was properly struck out by Besanko J as incompetent, no leave having been obtained pursuant to s 39 for the appeal to be instituted.
Insofar as there was a subsequent application for leave to appeal to the Full Court from the decision of Besanko J, that leave was properly refused by Judge Lunn in the order made by him on 11 May 2006.
The purported notice of appeal dated 15 May 2006 [FDN 13], in which Mr Kowalski attempts to appeal from the order of Judge Lunn, is itself irregular, no leave having been obtained for its filing.
I should add that, insofar as it was at one stage suggested by Mr Kowalski that the order made by Judge Lunn included the words “time for any appeal against this order is extended to 21 days from today” was tantamount to an order giving leave to appeal, I do not accept that he could have meant to convey that he was giving leave to appeal. To do so would have been completely inconsistent with the reasons refusing leave to appeal from the order of Besanko J. In any event, as I will explain, I would strike out the notice of appeal from the order of Judge Lunn on the basis that it has no reasonable prospect of success.
The grounds set out in that purported notice of appeal do not raise an arguable case against the order of Judge Lunn.
There is no need finally to decide the point whether or not the notice of appeal required leave. I would strike it out on the basis either that it was incompetent as requiring leave, or alternatively, on the basis that it has no reasonable prospect of success.
To make the present position entirely clear, there is now no extant notice of appeal in this matter. The purported notice of appeal filed on 22 December 2005 was struck out as incompetent and remains so, by virtue of the order of Besanko J made on 3 February 2006.
The purported notice of appeal filed on 15 May 2006 against the order of Judge Lunn made on 10 May 2006 refusing leave to appeal against the order of Besanko J, is struck out on the basis which I have just indicated.
The formal order is that the purported notice of appeal filed on 15 May 2006 [FDN 13] be struck out.