Kowalski v Mitsubishi Motors Aust Ltd No. DCCIV-90-2760 Judgment No. D3543

[1996] SADC 3543

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Lee

Hearing

21/11/96.

Representation

Applicant KAZIMIR KOWALSKI:
Counsel: IN PERSON

Respondent MITSUBISHI MOTORS AUSTRALIA LIMITED:
Counsel: MR S HENSCHLIFFE - Solicitors: FOUNTAIN &; BONIG

DCCIV-90-2760

Judgment No. D3543

23 December 1996

(Civil)

KOWALSKIV MITSUBISHI MOTORS

Civil

Judge Lee

Two interlocutory applications dated 28 August 1996 and 18 November 1996 are before me for determination.In both, the plaintiff seeks orders which will have the effect of re-opening my dismissal on 3 July 1992 of his claim for damages against the defendant.His claim involved an allegation, which I rejected, that he sustained personal injury on 9 May 1989 in the course of his employment with the defendant as the result of a slip in a pool of engine oil.

As I understand the plaintiff's present submission, in 1992 the defendant was estopped from denying his allegation by an earlier determination of a Review Officer of a claim by the plaintiff against the defendant under the Worker's Rehabilitation and Compensation Act 1986.I mention in passing that no estoppel was pleaded by the plaintiff in the proceedings before me at that time.

The determination was made by consent on 6 September 1991 after a hearing, and after the Review Officer had been informed that the defendant was prepared to admit liability to pay certain income maintenance to the plaintiff.So, in the end, the allegation was neither disputed nor made the subject of an adjudication in any relevant sense.

The plaintiff's submission, amongst others, was put to, and rejected by, Debelle J in related proceedings in the Supreme Court:Mitsubishi Motors Aust. Ltd v Harboard and Kowalski (21 November 1996, Judgment No. S5895).His Honour said:

"The decision of Review Officer Lovering did not give rise to an issue estoppel.She was not required to determine whether the incident alleged to have caused the disability in fact occurred.Her recital of Kowalski's allegations did not constitute a finding on that issue.She did no more than note that Mitsubishi had decided to accept the claim and then went on to make an order reversing the decision denying liability.The decision that her decision did not constitute an issue estoppel is, therefore, correct.It might be added that, for the reasons already given, Mitsubishi's conduct in accepting the claim did not constitute an estoppel.

Even if I were to disagree with Debelle J's ruling, which I do not, I am bound to give effect to it.

The plaintiff submits that power to make the orders sought resides in rule 3.04(f) of the District Court Rules.Another possible source of power is rule 84.12.Both rules have been in force since 1 January 1987, but the limits of their operation have yet to be authoritatively defined.Given my conclusion, I need not decide whether the orders sought are within power.Nevertheless, I note that, in Commonwealth Bank v Forshaw (1990) 55 SASR 247 at 257, Cox J questioned whether rule 84.12 could be used to upset a judgment entered in a party's favour after a trial on the merits.

The applications will be dismissed.