Kowalski v Layton - [2006] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KOWALSKI v LAYTON
Judgment of The Honourable Justice Besanko
3 February 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
Notice for specific directions – respondent to appeal sought order that appeal be struck out – appellant prohibited from instituting proceedings without leave of Court pursuant to order made under Supreme Court Act 1935, s 39 – held, allowing application – appeal instituted without leave of Court – appeal dismissed.
Application for disqualification – two grounds – first, his Honour member of Court that had decided question adverse to appellant – secondly, his Honour and respondent now members of same Court – held, dismissing application – first ground rejected on basis that Court had decided question of law only - second ground rejected on basis that, if for no other reason, principle of necessity applies.
Legal Practitioners Act 1981 s 86; Supreme Court Rules 1987 rr 3.01, 84.02, 97.11; Supreme Court Act 1935 ss 39, 130, referred to.
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; TKWJ v The Queen (2002) 212 CLR 124, considered.

KOWALSKI v LAYTON
[2006] SASC 28
Civil

BESANKO J: The appellant, Mr Kazimir Kowalski, has purported to appeal to this Court from an order made by the Legal Practitioners Disciplinary Tribunal on 15 December 2005. The purported appeal is brought pursuant to s 86(1) of the Legal Practitioners Act 1981 (“LPA”).
During 2005, the appellant laid charges before the Tribunal against the respondent, Ms R Layton QC, as her Honour then was. The charges related to Ms Layton’s conduct as counsel for Mitsubishi Motors Australia Ltd (“MMAL”) and, in particular, her conduct in an action in this Court between MMAL and the appellant. The action was heard by the Honourable Justice Bleby in February 2005. The order of the Tribunal which is the subject of the appeal is that the charges laid by the appellant are vexatious and are dismissed.
Ms Layton was appointed a judge of this Court on 2 March 2005.
The respondent has issued a notice for specific directions, which is supported by an affidavit, seeking an order that the appeal be struck out on the basis that the appellant failed to obtain the leave of the Supreme Court before issuing the appeal. Two rules of court are referred to in the notice, and they are rr 3.01 and 97.11 of the Supreme Court Rules 1987 (“SCR”), which are in the following terms:
3.01   Subject to Rule 2 except where the Court otherwise orders no breach of or non compliance with a Rule which does not arise out of disobedience or contumacy in relation to a prior order of the Court shall cause any proceedings to abate or be dismissed out of the Court. In cases of disobedience or contumacy the Court shall not order that the proceedings abate or be dismissed unless there is no other way of securing obedience to or compliance with the orders of the Court. Nothing in this rule affects:
(a)     the inherent jurisdiction of the Court to dismiss proceedings which disclose no cause of action known to the law or cannot by amendment be made to disclose such a cause of action, or which are frivolous, vexatious or an abuse of the process of the Court;
(b)     the power of the Court to grant a stay of proceedings where the justice of the case so requires.
…
97.11 (1)     A respondent may make an application at any time to the Court for an order dismissing an appeal governed by Rule 97 as incompetent.
(2)     Upon the hearing of the application the burden of establishing the competency of the appeal is on the appellant.
I assume that the respondent refers to r 3.01 because it contains an acknowledgment of the power to dismiss proceedings that are an abuse of the process of the Court.
The requirement for leave is said by the respondent to arise by reason of orders made by Bleby J under s 39 of the Supreme Court Act 1935 (“SCA”) in the action previously referred to. The orders were made by Bleby J on 19 April 2005 and are in the following terms:
1.The defendant be and is hereby prohibited from instituting further proceedings, whether civil or criminal, in a prescribed court as defined in section 39(6) Supreme Court Act 1935, against the plaintiff or any corporation related to the plaintiff or any present or former employee or agent of the plaintiff, without leave of the Court.
2. The following proceedings instituted by the defendant be stayed:
(a) Application pursuant to section 97 Workers Rehabilitation and Compensation Act 1986 made on 5 July 2005, No 4612 of 2004;
(b) Appeal in matter No 4612 of 2004 referred to in sub-paragraph (a) instituted on 3 August 2004 against the direction of the President of the Workers Compensation Tribunal pursuant to rule 10(1) Workers Compensation Tribunal Rules 2001 to strike out the proceedings referred to in sub-paragraph (a).
3.For the purpose of this order a corporation related to the plaintiff means a corporation that is related to the plaintiff by virtue of section 50 of the Corporations Act 2001 (Cth).
4.The defendant pay the plaintiff’s costs of the action.
5.The plaintiff have liberty to apply to vary paragraph 2 in respect of any other proceedings instituted by the defendant.
The orders were made after a hearing before Bleby J (Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154), and an appeal from that decision was dismissed by the Full Court of this Court on 22 November 2005 (Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433). The appellant told me that he was appealing to the High Court from the orders of the Full Court. I assume by that he means he has made, or will be making, an application for special leave to appeal.
The respondent submits that the purported appeal by the appellant falls within the terms of paragraph 1 of the above order, that no leave has been obtained, and, accordingly, that the appeal by the appellant should be struck out. The appellant submits that the order is unenforceable. In the alternative, he submits that his appeal does not fall within the prohibitions and restrictions in the orders. In the further alternative, he submits that he has been granted the leave of the Court to institute the appeal.
The application to me to disqualify myself
The appellant submits that I should disqualify myself on two grounds. First, he submits that I should disqualify myself because I was a member of the Full Court which decided a point adverse to him in Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 (“Mitsubishi Motors”).
Secondly, the appellant submits that I should disqualify myself because the respondent and I are now members of the same Court.
I decline to disqualify myself on the first ground advanced by the appellant. The question before the Court in Mitsubishi Motors was a question of law and was in the following terms:
Whether or not the Workers Compensation Tribunal is a court for the purposes of s 39 of the Supreme Court Act.
The Court, of which I was a member, answered the question in the following terms:
The Workers Compensation Tribunal is a ‘Court of the State’ for the purposes of s 39 of the Supreme Court Act 1935.
Having regard to the nature of the issue before the Court in that case and the fact that the issue is not directly relevant to the issues on this application, I see no reason to disqualify myself because I was a member of the Court in that matter.
I also decline to disqualify myself on the second ground advanced by the appellant. This is a purported appeal to this Court, and all judges of the Court are in the same position as I now find myself. In those circumstances, the submission must be rejected if for no other reason than that the principle of necessity applies: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J at 88-89 and per Deane J at 96-97.
I did not rule on the application that I disqualify myself at the time of oral submissions. I was told that submissions from both parties on the merits of the respondent’s application would take less than one hour in total, and, in those circumstances, I invited the parties to make submissions on the merits, so that if I declined to disqualify myself I could proceed to rule on the merits of the application. I decline to disqualify myself, and I turn to deal with the merits of the application.
The merits of the respondent’s application
In my opinion, the appeal is incompetent and should be dismissed. Although it is unnecessary for me to decide the point, the appeal is almost certainly an abuse of the process of the Court and liable to be dismissed on that ground.
I deal with each of the submissions made by the appellant.
First, the appellant submits that the orders of Bleby J are ineffective because he has sought special leave to appeal against the order of the Full Court dismissing his appeal against the orders. I reject this submission. Subject to any qualification in an order itself, an order takes effect when it is made: SCR, r 84.02. The orders made by Bleby J are therefore effective unless and until set aside.
Secondly, the appellant submits that the order of Bleby J is ineffective because a copy of the order has not been published in the South Australian Government Gazette (“Gazette”). Section 39(4) of the SCA provides that where an order is made under the section, a copy of it must be published in the Gazette. As it happens, a copy of the order was published in the Gazette on 19 January 2006, which was the day before the hearing before me. In those circumstances, and although he did not necessarily articulate the submission in this way, I take the appellant to be submitting that the order was ineffective at the time he instituted his appeal on 22 December 2005 because a copy of the order had not been published in the Gazette at that time.
In determining whether publication of the order in the Gazette is a necessary pre-condition to the effectiveness of an order made under s 39, I must have regard to the language of the section and its scope and object: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 390-391. An order made under s 39 is an order made by the Supreme Court after a hearing by the Court. The Court is a superior court of record: SCA, s 6. I would be slow to conclude that the effectiveness of an order of this Court is conditional upon the publication of the order in the Gazette. I can find nothing in the terms of the section which suggests that that is the proper construction of the section. Nor is it readily apparent that there would be any policy reason for making the effectiveness of an order of this Court conditional upon such publication in the Gazette. In my opinion, it is not a pre-condition of the effectiveness of the order made by Bleby J that it be published in the Gazette. In view of that conclusion, it is not necessary for me to consider whether, had the publication of the order been a necessary pre-condition to its effectiveness, its publication in the Gazette on 19 January 2006 overcame any difficulty for the respondent by reason that that was after the appeal was instituted by him on 22 December 2005. As I have said, the orders made by Bleby J were effective when made.
Thirdly, the appellant submits that the power in s 39 of the SCA, and orders made under the section, cannot qualify the statutory right of appeal given by s 86. I reject that submission. It is in the nature of the power given by s 39 of the SCA and orders made under the section that they may prevent a person from bringing proceedings that they are otherwise entitled to bring.
Fourthly, the appellant submits that the appeal is not a “proceeding” within the terms of paragraph 1 of the order. I reject that submission. The word “proceeding” is a word of wide import, and there is no reason to read it down in the context of the orders to exclude an appeal. In Mitsubishi Motors, Duggan J (with whom Anderson J and I agreed) said at [36]:
I have referred to the use of the term “proceedings” in s 39(1) and the meaning given to that term in s 39(6). The terms “proceeding” and “proceedings” are used in a broad sense in the Supreme Court Act. As in the case of the Supreme Court Act 1986 (Vic) , they refer to “a vehicle by which the jurisdiction of the court is invoked and not to the subject matter of a justiciable dispute”: Braeside Bearings Pty Ltd v HG Brignell & Associates [1996] 1 VR 17 at 20. See also Cheney v Spooner (1928) 41 CLR 532 at 536.
I also note that in the SCR the word “proceedings” is defined in the following terms:
… an action, suit, cause, matter or appeal, and includes a counterclaim.
Fifthly, the appellant submits that the respondent is not one of the parties referred to in paragraph 1 of the orders. Clearly, the appeal is not one of the proceedings referred to in paragraph 2 and that paragraph can be put to one side. To fall within the terms of paragraph 1, the respondent must be a former “agent” of MMAL. She is not a present or former employee or a present agent of MMAL. As I have said, the respondent acted as counsel for MMAL in the hearing of the action before Bleby J, and the charges laid before the Tribunal by the appellant primarily relate to her conduct in that capacity. At least for certain purposes, counsel is the agent of his or her client: TKWJ v The Queen (2002) 212 CLR 124 per McHugh J at 147 [74]. There is no reason to read down the word “agent” in paragraph 1 of the orders, and, in my opinion, the respondent is relevantly a former agent of MMAL and therefore falls within the terms of paragraph 1 of the orders.
A related point made by the appellant was that his appeal does not fall within the terms of paragraph 2 of the orders and therefore the orders do not affect the appeal because there has been no application under paragraph 5 to vary the terms of paragraph 2. That submission must be rejected because the appeal against the respondent falls within the terms of paragraph 1 of the orders.
Sixthly, the appellant submits that he has been given the leave of the Court to institute the appeal. The appellant made an application for a remission, or reduction, of court fees, pursuant to s 130 of the SCA. Section 130 is in the following terms:
(1)The Governor may, by regulation, prescribe and provide for the payment of fees in respect of proceedings in the court, or any step in such proceedings.
(2)The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.
On 23 December 2005, the appellant was advised by letter that the fee payable in relation to the notice of appeal had been remitted under s 130(2). That is not the granting of leave to institute the appeal within the terms of paragraph 1 of the order. It is quite a separate matter and relates to whether the fee payable should be remitted on account of the poverty of the party making the application or for any other proper reason.
Conclusion
The appeal has been instituted without the leave of the Court within the terms of paragraph 1 of the orders made by the Honourable Justice Bleby on 19 April 2005. In my opinion, it should be dismissed and I will so order. I will hear the parties on the question of costs.