Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund P/L - [2017] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
KOWALSKI v MITSUBISHI MOTORS AUST STAFF SUPERANNUATION FUND P/L & ANOR
[2017] SADC 57
Judgment of His Honour Judge Muecke
31 May 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL - IDENTITY OF ISSUES - CONSTRUCTION OF WILLS AND SETTLEMENTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT - WHETHER CONCLUDED CONTRACT
The plaintiff is a vexatious litigant.
The plaintiff was granted permission to institute these proceedings in which he sought a declaration that the Trustee breached its fiduciary duty to him and an order directing the Trustee to consider his eligibility for a TPD benefit according to law.
The defendants brought an Interlocutory Application seeking summary judgment in their favour against the plaintiff on the basis that the Heads of Agreement was executed in circumstances that created a trust in favour of them by which the plaintiff promised not to institute proceedings against them.
The plaintiff brought an Interlocutory Application seeking summary judgment in his favour against the defendants on the basis that Blue J had already decided the issue in his action against the defendants in this Court in his judgment given on 20 August 2015.
Held:
1. Blue J did not decide the issues and the defendants are not estopped from raising them in this action.
2. The Heads of Agreement is not non est factum.
3. The Heads of Agreement is not otherwise void or of no legal effect.
4. The parties to the Heads of Agreement clearly intended to create a trust in favour of the defendants so as to give them the benefit of the plaintiff’s promise not to institute legal proceedings against them.
5. After holding what amounted to a trial, judgment dismissing the plaintiff’s claim.
Supreme Court Act 1935 (SA) s 39, s 39(6); Workers Rehabilitation and Compensation Act 1986 (SA) s 119, s 119(1), referred to.
Attorney-General v Kowalski [2014] SASC 1; Attorney-General v Kowalski [2015] SASC 123; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53; Kowalski v AMP Superannuation Limited [2010] FCA 1170; Soden v Kowalski [2011] FCA 318; Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93; Workers Rehabilitation & Compensation Corporation v JR Engineering Services Pty Ltd & Ors (1995) 180 LSJS 276; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, considered.

KOWALSKI v MITSUBISHI MOTORS AUST STAFF SUPERANNUATION FUND P/L & ANOR
[2017] SADC 57
Civil
MUECKE DCJ.
Background and Blue J’s Judgments of 20 January 2014 & 20 August 2015

On 11 April 2011 the Attorney-General instituted an action in the Supreme Court in which he sought a declaration that Kazimir Kowalski (“the plaintiff”) had persistently instituted vexatious proceedings within the meaning of s 39 of the Supreme Court Act 1935 (SA). Further, he sought an order prohibiting the plaintiff from instituting further proceedings without permission of the Supreme Court and orders staying proceedings that then existed. Justice Blue of the Supreme Court commenced hearing the application on 3 December 2012. The hearing proceeded over a number of days and concluded on 22 November 2013.
On 20 January 2014 Blue J published reasons for concluding that the plaintiff instituted 63 vexatious proceedings over the course of 12 years. He instituted those proceedings in the Workers Compensation Tribunal, the Disciplinary Tribunal, the Magistrates Court, the District Court, and the Supreme Court. Justice Blue concluded that in many of those cases the plaintiff instituted appeals from the first instance decision. In several the plaintiff sought to re‑litigate issues already conclusively determined against him. In several the plaintiff made extravagant allegations which were not substantiated. In paras [1982]-[1985] of his reasons Blue J wrote this:[1]
I accept that Mr Kowalski genuinely feels grievances concerning Mitsubishi’s reliance upon the Heads of Agreement to preclude any workers compensation claims by him which he considers to be in contravention of section 119 of the 1986 Act, Mitsubishi Superannuation’s refusal to pay him a total and permanent disability benefit; RJ Cole & Partners’ conduct of his claim in the District Court; and the amounts charged by RJ Cole & Partners, Stanley & Partners and Lieschke & Weatherill and monies and trust monies applied or appropriated by those firms towards their fees. This is not to conclude that Mr Kowalski’s grievances entail that he was entitled to the relief which he sought against those parties. Nevertheless, in each case, either the Attorney General has conceded or have I found that Mr Kowalski’s initial claims against four of those parties were not instituted without reasonable ground.
However, after Mr Kowalski was met with binding decisions by courts or tribunals dismissing or rejecting his primary claims, he continued to litigate the same or related issues time and time again against those parties in circumstances which rendered that litigation vexatious.
He expanded the litigation to encompass solicitors, counsel and advocates for those primary parties and in many such cases made extravagant allegations which were not substantiated. The pursuit of litigation against his primary and secondary opponents has become an obsession and a compulsion.
Taking into account all of the circumstances, I find that Mr Kowalski persistently instituted vexatious proceedings.
[1] Attorney-General v Kowalski [2014] SASC 1 at [1982]-[1985].
Justice Blue wrote that his conclusion that the plaintiff has consistently instituted vexatious proceedings enlivened, but did not dictate the exercise of, a discretion under s 39 of the Supreme Court Act whether to make an order prohibiting him from instituting further proceedings without permission of the Court and/or staying proceedings already instituted by him.
Justice Blue wrote that unless an order was made it was almost certain that the plaintiff would continue to institute further proceedings and it was likely that he would institute further proceedings which are vexatious.
As to the exercise of his discretion Blue J wrote this (at para [1989]):
It is a factor in favour of the exercise of discretion that, after Mr Kowalski was met with binding decisions by courts or tribunals dismissing or rejecting his claims, he continued to engage in litigation time and again against the relevant parties in circumstances which rendered that litigation vexatious. He expanded the litigation to encompass solicitors, counsel and advocates for those primary parties. In many cases he made extravagant and unfounded allegations. It is a factor in favour of the exercise of the discretion that, in the absence of an order, unnecessary time and expense is likely to be incurred by Mr Kowalski’s opponents in future litigation which is vexatious. In addition, the resources of the courts which are funded by the public are likely to be used for the purposes of vexatious litigation, being scarce resources otherwise devoted to other causes. It is a factor in favour of exercise of the discretion that there are several proceedings still on foot which I have concluded are vexatious.
Justice Blue concluded that he should make the orders sought by the Attorney-General.
On 28 January 2014 Blue J ordered that the plaintiff “is prohibited from instituting further proceedings in a prescribed court as defined by s 39(6) of the Supreme Court Act 1935, without permission of this Court”. He ordered that certain proceedings instituted by the plaintiff be stayed. He gave liberty to the plaintiff to apply for permission under the paragraph of his order which prohibited the plaintiff from instituting further proceedings without the permission of the Supreme Court.
In his 332 page judgment published on 20 January 2014 Blue J meticulously set out the 109 applications the plaintiff brought between November 1996 and May 2012 in seven forums. These proceedings were contended by the Attorney‑General to be vexatious.
The plaintiff was employed by Mitsubishi Motors Australia Limited (“Mitsubishi”) between 1964 and 1994. Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd was the trustee of the Mitsubishi Motors Australia Staff Superannuation Fund whose members were Mitsubishi employees.
In June 2006 a deed was entered into between AMP Superannuation Ltd and Mitsubishi Superannuation to provide for the benefit entitlements of members of the Mitsubishi Superannuation Fund to be rolled over from that fund into the AMP Superannuation Fund. Mitsubishi Superannuation transferred to AMP Superannuation assets of the Mitsubishi Superannuation Fund corresponding with the entitlements of transferring members.
In December 1986 the plaintiff suffered an injury to his eye at work at Mitsubishi. In May 1988 the plaintiff suffered an injury to his finger at work at Mitsubishi. In May 1989 the plaintiff suffered an injury to his back and consequentially to his left leg. On 16 August 1991 an incident occurred at Mitsubishi which resulted in the plaintiff leaving work, never to return. He claimed workers compensation for emotional distress as a result of the incident. In December 1997 the plaintiff suffered a heart attack which he claimed was the result of stress caused by ongoing litigation with Mitsubishi. He lodged a claim for compensation with Mitsubishi.
Between April 1992 and February 1994 the plaintiff received periodic payments from the Mitsubishi Superannuation Fund for total temporary disablement.
In March 1994 Mitsubishi wrote to the plaintiff stating the contract of employment was frustrated and was at an end.
In August and September 1998 the plaintiff saw a psychiatrist and a cardiologist.
A significant feature of the plaintiff’s work injuries history with Mitsubishi involved a settlement that was reached at mediation between the plaintiff and Mitsubishi in October 1998. This was to feature in litigation in which the plaintiff engaged time and again against various parties and people in the over 18 years ever since.
Justice Blue describes it in his judgment of 20 January 2014 in this way:[2]
The Heads of Agreement
On 26 October 1998, a settlement was reached at mediation between Mr Kowalski and Mitsubishi. It was agreed that Mitsubishi would pay to Mr Kowalski $200,000 in settlement of all claims by Mr Kowalski against Mitsubishi and against Mitsubishi Superannuation.
On 27 October 1998, Mitsubishi and Mr and Mrs Kowalski executed a Heads of Agreement. Mitsubishi Superannuation was not named as a party and did not execute the Heads of Agreement (although it later claimed that it was entitled to rely upon it as a bar to claims by Mr Kowalski). All proceedings on foot in the Workers Compensation Tribunal and before the review panel were dismissed or determined by consent over the next 9 days.
[2] Attorney-General v Kowalski [2014] SASC 1 at [78]-[79].
Justice Blue referred to the Heads of Agreement on numerous occasions in his judgment. Paras [335] to [339] are as follows:
1998 Settlement
On 26 October 1998, Mr Walsh QC presided over a mediation between Mitsubishi and Mr and Mrs Kowalski. On 27 October 1998, Mitsubishi and Mr and Mrs Kowalski executed a document entitled Heads of Agreement (“the Heads of Agreement”).
The Heads of Agreement provided for Mitsubishi to pay $200,000 to Mr Kowalski on behalf of himself and his dependants. The payment was expressed to be in full and final settlement of any entitlements Mr Kowalski might have to “superannuation, sick leave, compensation and damages arising out of or in the course of his employment with [Mitsubishi]”. The sum of $200,000 was expressed to comprise three components:
1.$64,691.43 to be paid from the Mitsubishi Superannuation Fund by way of an ill health benefit;
2.$10,000 in consideration of Mr Kowalski foregoing any claims or future claims in any way arising from his employment; and
3.$125,308.57 by way of an ex gratia payment as compensation for permanent disability impairing Mr Kowalski’s future earning capacity arising from his claimed injuries and disabilities.
Mr Kowalski agreed to discontinue all proceedings subsisting between himself and Mitsubishi.
On 28 October 1998, Deputy President Gilchrist in the Workers Compensation Tribunal made orders by consent dismissing Mr Kowalski’s proceedings pending in the Tribunal (including his 17 July 1998, 3 August 1998 and 31 August 1998 notices of dispute) except the section 97 proceedings before Conciliation Officer Richer.
On 3 November 1998, Conciliation Officer Richer in the Workers Compensation Tribunal in action 4163 of 1998 made determinations by consent under section 97B(1)(b) of the 1986 Act dismissing Mr Kowalski’s April and August 1998 claims for compensation.
On 5 November 1998, Review Officer Duigan made orders by consent dismissing all claims by Mr Kowalski against Mitsubishi currently before the review panel under the pre‑3 June 1996 regime.
(Footnotes omitted)
Payment was made to the plaintiff as set out in the Heads of Agreement.
In other parts of his judgment Blue J referred to the fact that on 17 September 2002 Mansfield J held that the Federal Court had no jurisdiction to entertain a claim by the plaintiff against Mitsubishi Superannuation for an entitlement to a total and permanent disability benefit (para [371]). He referred to the fact that on 23 March 2004 the plaintiff’s union, the AMWU, wrote to Mitsubishi Superannuation enquiring, inter alia, why the plaintiff was refused entitlement to a TPD benefit after making application for it on 26 October 1998 (para [410]), being the date that the settlement was reached. He referred to the fact that on 19 April 2004 the plaintiff filed charges of unprofessional conduct in the Disciplinary Tribunal against senior and junior counsel for Mitsubishi alleging that each, on or about 26-27 October 1998, attempted to induce him to waive a right or benefit conferred by or under the Workers Rehabilitation and Compensation Act 1986 (SA) (“the 1986 Workers Act”) by entering into the Heads of Agreement (para [414]). He referred to the fact that on 20 August 2004 the plaintiff filed in the Disciplinary Tribunal a charge of unprofessional conduct against a female practitioner in that she deliberately made a statement that was false because Mitsubishi Superannuation had paid him $64,691 in November 1998 (para [428]), being the sum referred to in component 1 of the Heads of Agreement. He referred to the fact that on 19 November 2004 the plaintiff filed a second charge of unprofessional conduct against senior counsel for Mitsubishi alleging that she made dishonest submissions to the Workers Compensation Tribunal concerning amounts owing to the plaintiff as at the execution of the Heads of Agreement on 27 October 1998 (para [434]). He referred to the fact that on 1 June 2006 Doyle CJ revoked a Master’s order granting leave to the plaintiff to institute an action in the District Court against Mitsubishi Superannuation because Doyle CJ concluded that, on the face of the proposed Statement of Claim, there were not sufficient material facts pleaded to identify that there was a tenable factual and legal basis for the claim (para [482]).
In para [1047] of his judgment Blue J referred to the fact that in several applications involving Mitsubishi that the Attorney-General contended were vexatious, “a major issued raised by (the plaintiff) involved the validity of the Heads of Agreement”. He referred to the fact that the plaintiff contended that the provisions of the 1986 Workers Act, and in particular s 119 of that Act, precluded or were inconsistent with the ability of the parties to enter into a valid agreement without the consent of WorkCover.
In para [1063] of his judgment Blue J referred to the Heads of Agreement as falling into a category of agreement which he described as a “compromise of any claims (whether made or not) encompassing future as well as past entitlements”. He set out that the Heads of Agreement relevantly provided:
1.Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1     Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997.
1.2     Any outstanding sick leave.
1.3     Any matters related to the termination of his employment with MMAL.
1.4     Any superannuation payable by the MMAL Staff Superannuation Fund.
2.The said sum of $200,000 is to be paid to Kowalski as follows:
2.1     The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment.
2.2     The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above.
2.3     The sum of $10,000 to be paid by MMAL in consideration of Kowalski forgoing any claims or future claims in any way arising from his employment.
…
4.In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1     Not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against R J Cole & Partners and Dowd.
…
4.3     To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL.
4.4     To execute all documents necessary to bring into effect this agreement and to make such personal attendances required at any Court, Tribunal or Commission.
Justice Blue wrote: “The effect of the Heads of Agreement was to preclude (the plaintiff) from pursuing any claims for compensation under the Act in respect of past or future entitlements, including specific claims and any potential future claims” (para [1064]).
In para [1088] of his judgment Blue J wrote that he did not find it necessary or desirable to decide the proper construction of s 119(1) of the 1986 Workers Act. He said that it was necessary only for him “merely to decide what was reasonably arguable by (the plaintiff) before the Workers Compensation Tribunal”. He considered that issues concerning the rights of Mitsubishi vis‑à‑vis the plaintiff should not be determined in the absence of Mitsubishi, who was not a party to the action.
In para [1852] of his judgment Blue J referred to the fact that all of the plaintiff’s submissions relating to his complaint against senior counsel for Mitsubishi which he had filed in the Disciplinary Tribunal on 19 November 2004 in which he alleged she had made dishonest submissions on 10 May 2001, related to the Heads of Agreement.

At the end of his judgment Blue J annexed a schedule of proceedings instituted by the plaintiff. He found that 14 proceedings which had been instituted by the plaintiff subsequent to the Attorney-General instituting the proceedings seeking a declaration that the plaintiff was a vexatious litigant were initiated without reasonable ground. He found that the plaintiff had instituted nine of them for an ulterior purpose. He found that all of those proceedings were vexatious.
At some time between 20 January 2014 and 20 August 2015, in the same Supreme Court action in which the Attorney-General sought a declaration that the plaintiff had persistently instituted vexatious proceedings, the plaintiff sought permission of the Supreme Court to institute an action in this Court against Mitsubishi Motors Australia Staff Superannuation Pty Ltd and AMP Superannuation Limited.
I shall refer to these two entities as “the proposed defendants” and “the defendants” notwithstanding there were issues raised regarding the correct name of the former and its corporate status.
Justice Blue heard the plaintiff’s application on 4 May 2015. The plaintiff had filed several affidavits in support of his application which exhibited documents said to be relevant to his proposed claim. He had provided Blue J with a draft Statement of Claim representing the pleading that he would file if permission was granted. He had given notice of the application to the proposed defendants. They had filed two affidavits sworn by a solicitor in opposition to the plaintiff’s application which exhibited pleadings, affidavits and written submissions filed in two Federal Court actions. One was before Finn J in 2007 and the other was before Mansfield J in 2010.
The proposed defendants contended that the plaintiff was precluded by res judicata or, alternatively, issue estoppel by virtue of the judgments of Finn J and Mansfield J. Alternatively, the plaintiff was precluded by “Anshun estoppel” by reason of his pursuit of the two Federal Court actions, or because the plaintiff has no tenable answer that all causes of action are precluded by the Heads of Agreement between the plaintiff and Mitsubishi Motors, which preclusion the plaintiff is prevented from challenging by issue estoppel arising from the summary judgment in the first Federal Court action; or because the plaintiff’s proposed action is an abuse of process as an impermissible attempt to re-litigate claims the subject of both Federal Court actions; or for the reasons given by Finn J and Mansfield J in the two Federal Court actions.
By judgment dated 20 August 2015 Blue J granted permission to the plaintiff to institute his proposed action in this Court. He directed the plaintiff “to bring forward a draft Statement of Claim reflecting (his) reasons”. He indicated that the plaintiff’s draft Statement of Claim would need to be amended “to seek as the first remedy a declaration that the Trustee breached its fiduciary duty, as the second remedy that the Trustee be directed to consider the question of eligibility for a TPD benefit according to law, and as the third remedy costs” (para [266]).
Justice Blue concluded that he was satisfied that the plaintiff “has a tenable claim against Mitsubishi Superannuation and/or AMP Superannuation and that permission to institute the proposed action in the District Court should be granted”. He indicated that the “relationship between the respondents (the proposed defendants) depends upon the complex provisions of the June 2006 Transfer Deed which can be addressed in the District Court action” (para [267]).
In his judgment Blue J held that the summary judgments granted by Finn J and Mansfield J in the Federal Court were not final judgments on the merits and therefore did not give rise to res judicata or issue estoppel. Further, he held that the judgment of Mansfield J did not give rise to res judicata or issue estoppel as Mansfield J held that the Federal Court did not have jurisdiction to hear the plaintiff’s second action. Further, Blue J held that the plaintiff was not precluded by “Anshun estoppel” from prosecuting claims not made in the Federal Court actions. Further, Blue J held that the plaintiff was not precluded by issue estoppel from contesting preclusion of his claims by the Heads of Agreement. Further, Blue J held that the plaintiff’s proposed action would not constitute an abuse of process on the ground that it is an impermissible attempt to re-litigate the claims the subject of the Federal Court actions.
Justice Blue dealt with the proposed defendants’ contentions “that all seven claims sought to be advanced by (the plaintiff) are precluded by the Heads of Agreement between (the plaintiff) and Mitsubishi Motors which preclusion he is prevented from challenging by issue estoppel arising from the summary judgment in the first Federal Court action”. He dealt with that in his judgment commencing at para [187]. He held that it was only after Finn J reached the conclusion that the plaintiff’s claim in the first Federal Court action had no reasonable prospects of success, and after he had announced his summary dismissal order, that Finn J turned to consider the defence based on the Heads of Agreement. Justice Blue then wrote this:[3]
[3] Attorney-General v Kowalski [2015] SASC 123 at [190]-[199].
Issue estoppel only applies to “what is legally indispensable to the conclusion”. As Finn J had already reached the conclusion that the proceeding should be summarily dismissed before considering the foreshadowed defence based on the Heads of Agreement, what was said about that foreshadowed defence was not necessary or legally indispensable to the conclusion.
This conclusion is confirmed by the reasons of the Full Court of the Federal Court on Mr Kowalski’s application for leave to appeal against Finn J’s judgment. Spender, Graham and Gilmour JJ said:
The primary judge’s observation, at [96], that the foreshadowed defence provided a further basis for concluding that Mr Kowalski’s Further Amended Application had no reasonable prospects of success was not strictly necessary and need not be considered on the hearing of the present application, given his Honour’s conclusions on Mr Kowalski’s claims at [89] of his reasons.
On this application, the respondents do not rely upon a defence based on the Heads of Agreement independently of issue estoppel said to arise from Finn J’s judgment. It is not possible in any event to determine at this point on the materials before me the merits of such a defence for several reasons.
The contractual promise by Mr Kowalski could only operate as a covenant not to sue and not as a release because an obligation created by deed (in this case the Trust Deed) can only be released by deed and the parties are different. If the defence is to be pursued, it will be necessary for Mitsubishi Motors to bring a claim against Mr Kowalski seeking equitable relief by way of specific performance to enforce the covenant not to sue, or, if Mitsubishi Motors refuses to do so, for Mitsubishi Superannuation to seek equitable relief by way of compelling Mitsubishi Motors to do so. Discretionary considerations might potentially arise as to the grant of such equitable relief.
There is no evidence before me as to any communications between Mitsubishi Motors and Mitsubishi Superannuation before execution of the Heads of Agreement on the topic or relevant to whether Mitsubishi Superannuation was to have the benefit of the covenant not to sue.
There is no real evidence before me of the background facts and circumstances known to Mr Kowalski, Mitsubishi Motors and Mitsubishi Superannuation at the time of execution of the Heads of Agreement bearing on the contractual intention of the parties to the Heads of Agreement.
There is no evidence explaining why, if it were intended that Mitsubishi Superannuation be the beneficiary of Mr Kowalski’s covenant not to sue, it was not made a party to the Heads of Agreement.
There is no evidence explaining why Mitsubishi Superannuation addressed Mr Kowalski’s subsequent claims for a TPD Retirement benefit between 1999 and 2001 by reference to his eligibility for a benefit as at 1992 or 1991 rather than relying on or raising the Heads of Agreement or of communications between Mitsubishi Motors and Mitsubishi Superannuation in relation to Mr Kowalski’s claims made after execution of the Heads of Agreement.
An issue will arise and need to be determined whether it was the intention that the covenant not to sue would encompass conduct by the Trustee allegedly in breach of trust.
I am not in a position to answer these questions.
(Footnotes omitted)
The plaintiff filed a Statement of Claim in this Court on 2 September 2015. In it he sought the following orders and declarations:
1.A declaration that the Trustee breached its fiduciary duty to the Plaintiff.
2.An Order the Trustee be directed to consider the question of eligibility for a TPD benefit according to law.
3.Costs and disbursements of and incidental to this claim on an indemnity basis.
The plaintiff alleged that the “causes of action relied on are that the First Defendant and the Second Defendant has … Breached its fiduciary duty to the Plaintiff”.
As indicated in his Statement of Claim the plaintiff’s claim against the defendants “is for the payment of a Total and Permanent Disability Benefit because they have made an erroneous decision that the plaintiff was not entitled to be paid a TPD Benefit”.
The plaintiff sets out what he refers to as background and uncontroversial matters. Included in that part of his Statement of Claim he refers to seven periods between 16 August 1991 and 6 May 2014. He refers to the defendants informing him on various occasions that the Trustee had previously considered and declined his claim for a TPD arising from his employment with Mitsubishi up to 16 March 1994. He refers to the fact that in June 2010 AMP Superannuation wrote to him indicating that “the trustee had formed the view that the material provided by the plaintiff did not warrant reconsideration of his claim for a TPD benefit or indicate a reasonable possibility of a different result in respect of his claim”. He refers to the fact that he received no reply to a letter he wrote on 6 May 2014 to Mitsubishi Superannuation and AMP Superannuation “formally requesting the trustee to re‑determine his claim for a TPD benefit as a result of the 16 March 1994 frustration of his employment”.
The plaintiff sets out in Part 2 of his Statement of Claim his allegations that in 1994, 1998, 1999, 2001, 2005, 2010, and 2014 the Trustee acted in breach of trust and/or exercised a discretion which was vitiated in some way or ways.
By Interlocutory Application filed in this Court on 7 October 2015 the second defendant, AMP Superannuation Limited, sought orders or directions that it be excused from the obligation to file a defence until further order; that summary judgment be granted in its favour pursuant to r 232 of the District Court Civil Rules 2006 (SA); and that the plaintiff pay its costs.
Also on 7 October 2015 the second defendant filed an affidavit of Craig Alan Altorfer (“Mr Altorfer”) in support of its Interlocutory Application seeking summary judgment in its favour. Mr Altorfer annexed to his affidavit a copy of a Heads of Agreement dated 27 October 1998 (“CAA11”). He swore that was signed following a mediation on 26 October 1998. He referred to the events leading up to and following that mediation. He swore that if the first and second defendants in this action “are each required to file a defence, it would undercut the very purpose of the Heads of Agreement which was to prevent the Plaintiff from instituting any further proceedings in respect of the matters covered by the Heads of Agreement”. He swore that if each defendant was required to file a defence “responding to the Plaintiff’s allegations traversing events from 1991 to 2014, they will each incur very substantial costs which will be wasted in the event this Honourable Court grants this application”. He swore that he was “also aware that the plaintiff has been found by this Court to have paid monies into a trust and divested a share in a house in order to defeat creditors and in particular MMAL. If the plaintiff is of limited means, a costs order against him for the very substantial costs involved in responding to this proceeding will be essentially worthless”. He requested that the application be listed before a Judge of this Court.
On 8 October 2015 the plaintiff filed an Interlocutory Application in this Court. In it he sought the following orders or directions:
1.In view of the findings of fact that Justice Blue has made in his judgment in Attorney‑General v Kowalski [2015] SASC 123 (20 August 2015) summary judgment be granted against the first and the second Defendant.
2.That the orders or directions that are found in points 2, 3 and 4 of the second Defendant’s Interlocutory Application dated 7 October 2015 be dismissed on the grounds that are found in Justice Blue’s judgment in Attorney-General v Kowalski [2015] SASC 123 (20 August 2015).
3.In view of the findings of fact that Justice Blue has made in his judgment in Attorney-General v Kowalski [2015] SASC 123 (20 August 2015), the second Defendant’s Interlocutory Application dated 7 October 2015 is an abuse of the process of the District Court and it is an attempt to pervert the course of justice in District Court action No. 1253 of 2015.
4.The second Defendant pays the Plaintiff’s costs and disbursements of an incidental to this Interlocutory Application on an indemnity basis.
5.Such further orders as the Honourable District Court deems fit.
Also on 8 October 2015 the plaintiff filed an affidavit he swore that day. He exhibited a bundle of documents said to support his application for Summary Judgment against the defendants. One of these documents was page 64 of Blue J’s judgment dated 20 August 2015 permitting the plaintiff to institute this action. Further, he deposed to certain of the allegations in Mr Altorfer’s affidavit which he disputed or said were irrelevant.
The hearing before me
The matter first came on before me on 8 October 2015 at 11.33 am. I heard the two applications on that day, 16 December 2015, 12 February 2016, 14 April 2016 and 20 May 2016. The defendants filed and exhibited in the hearing before me two affidavits of Mr Altorfer and one affidavit of David Allan Smelt. These became, respectively, Exhibits D1, D2 and D3. The plaintiff filed 13 affidavits which he swore between 8 October 2015 and 19 April 2016. All his affidavits were admitted as exhibits before me, although his 12^th and 13^th affidavits were admitted and marked for identification for me to rule upon later. In his 11^th affidavit the plaintiff exhibited a third affidavit of Mr Altorfer.
By the time I reserved my decisions at the conclusion of the hearing before me on 20 May 2016 I had received an outline of submissions of Mr Tom Cox SC, of senior counsel for the defendants. I received that on 27 November 2015. I had also received nine written submissions from the plaintiff. These were filed on 3 December 2015, 14 December 2015, 15 December 2015, 21 December 2015, 8 January 2016, 16 February 2016, 22 February 2016, 1 March 29016 and 24 May 2016. Months after I reserved my decision the plaintiff filed further written submissions. That was on 7 December 2016. The document indicates that it was faxed to the Court on 2 December 2016. It does not indicate that the plaintiff served the defendants. Finally, I received, on 8 May 2017 via the office of the new Chief Judge of the District Court, what was said to be a copy of Blue J’s judgment dated 24 April 2017. It was sent to me as the Chief Judge had received a request from the plaintiff that I be provided with a copy. It is not indicated whether the defendants were advised that the plaintiff had asked that I be provided with a copy. I have not read or taken into account the plaintiff’s written submissions filed on 7 December 2016 or Blue J’s judgment dated 24 April 2017.
For completeness, I note that from the time I became seized of this action and the two interlocutory applications which were filed in October 2015, I have seen numerous emails from the plaintiff to various people regarding this matter. Some have been given to me by the plaintiff during the hearings, some have been exhibited to his affidavits, one was received and marked for identification Exhibit P15, and others were forwarded to me by the Registry staff in the District Court. I also saw a number of documents relating to the plaintiff’s application for remission of copying fees. None of this material is relevant to my decisions on the applications before me.
In support of their application that the plaintiff’s claim be summarily dismissed the defendants submitted that “there is no reasonable basis for the Plaintiff’s claim against the Defendants in the face of the terms of the Heads of Agreement, properly construed in all the circumstances surrounding its execution, as evidenced by the matters deposed to in the Altorfer Affidavit and the Smelt Affidavit” (Outline, para 14).
The Heads of Agreement has been the centrepiece of numerous proceedings between the plaintiff and Mitsubishi, the plaintiff and the superannuation funds, and the plaintiff and numerous people with whom he has come in contact over the last 15 years or so. It continues to be the centrepiece in this action and the two applications I must consider and decide.
As is seen by the passage from Blue J’s judgment of 20 August 2015 to which I earlier referred (paras [192]-[199]) the defendants before me did not rely before him upon a defence based on the Heads of Agreement independently of issue estoppel said to arise from Finn J’s judgment. Justice Blue said that it was not possible for him, in any event, to determine the merits of such a point or defence on the materials before him. He referred to there being several reasons for that. He referred to the fact that the contractual promise by the plaintiff could only operate as a covenant not to sue and not as a release. He referred to the possible necessity for Mitsubishi to bring a claim against the plaintiff for equitable relief. Further, he indicated that there was no evidence before him as to any communications between Mitsubishi Motors and Mitsubishi Superannuation before execution of the Heads of Agreement on the topic or relevant to whether Mitsubishi Superannuation was to have the benefit of the covenant not to sue. Further, he referred to the fact that there “is no real evidence before me of the background facts and circumstances known to Mr Kowalski, Mitsubishi Motors and Mitsubishi Superannuation at the time of the execution of the Heads of Agreement bearing on the contractual intention of the parties to the Heads of Agreement”. Further, he referred to the lack of evidence explaining why Mitsubishi Superannuation, if it was intended to be a beneficiary of the plaintiff’s covenant not to sue, was not made a party to the Heads of Agreement. Further, he referred to the lack of evidence explaining why Mitsubishi Superannuation addressed the plaintiff’s subsequent claims for a TPD Retirement Benefit between 1999 and 2001 by reference to his eligibility for a benefit rather than relying on or raising the Heads of Agreement. Lastly, he referred to the fact that an issue will arise and need to be determined whether it was “the intention that the covenant not to sue would encompass conduct by the Trustee allegedly in breach of trust”.
As to the validity of the Heads of Agreement dated 27 October 1998, Blue J had, expressed some tentative views, in his judgment of 20 January 2014 (para [1088]), as to the proper construction of s 119 of the 1986 Workers Act and as to the plaintiff’s submission before him that at least by operation of that section the Heads of Agreement was void and of no effect. He, however, found it neither necessary nor desirable to decide this issue.

It is seen that, in the proceedings before Blue J which resulted in his judgment of 20 January 2014 and his judgment of 20 August 2015, there appears little doubt that the Heads of Agreement which was the subject of those hearings and judgments was a Heads of Agreement executed and dated 27 October 1998, the terms of which are referred to paras [78]-[79] and paras [335]-[339] in Blue J’s decision of 20 January 2014 and para [49] of Blue J’s decision of 20 August 2015.
Whilst there were at times before Blue J that the plaintiff asserted that the executed Heads of Agreement dated 27 October 1998 was void for various reasons (and in particular because of s 119 of the 1986 Workers Act), it was that document that was the subject of the evidence and the decisions not only of Blue J but of others in a variety of different jurisdictions, including the Federal Court, the Workers Compensation Tribunals and the Legal Practitioners Disciplinary Tribunal.
I refer to this now because after I had received Mr Cox’s outline of submissions for the hearing before me on 16 December 2015 and after the plaintiff had received it, over the course of the various hearings before me the plaintiff not only asserted that the executed Heads of Agreement of 27 October 1998 was void for a number of reasons, including one which he had never raised in any proceedings before the proceedings before me, it was not the “true” Heads of Agreement between he and Mitsubishi that had been agreed to by the parties at the mediation on 26 October 1998. He told me that as a result of a hearing before Blue J in late 2015 he remembered that the Mediator, Mr Stephen Walsh QC, had faxed to him, on the evening of 26 October 1998, 10 pages which included the true Heads of Agreement and the Mediation Agreement which had been prepared before the mediation on 26 October 1998. His submission was that that group of documents also contained what he described as “the 1^st version” of the Heads of Agreement. He said that was the one he agreed to and initialled on 26 October 1998.
True it is that the plaintiff’s position before me was that all three “Heads of Agreement” (I shall come to the three later) were void and not legally binding on him for a variety of reasons, he submitted that the signed, executed Heads of Agreement dated 27 October 1998 which had been the subject of vast litigation in numerous jurisdictions over many years was not even the real Heads of Agreement. So far as I am aware that had never been submitted by the plaintiff before. Not only that, the plaintiff told me that he wants senior and junior counsel for Mitsubishi in 1998 charged for fabricating the Heads of Agreement dated 27 October 1998.
Some other evidence before me and some findings
In his judgment of 20 January 2014 Blue J set out in detail the history of the plaintiff’s matters, and in particular his employment with Mitsubishi and the history of his work injuries. He deals with these in paras [51]-[79] of his judgment. In paras [78]-[79] he refers to a settlement being reached at mediation on 26 October 1998 and that Mitsubishi and the plaintiff and his wife executed a Heads of Agreement on 27 October 1998.
In para [88] of his judgment Blue J refers to the plaintiff receiving periodic payments from the Mitsubishi Superannuation Fund for total temporary disablement between April 1992 and February 1994.
By letter dated 16 March 1994 (Exhibit P6, plaintiff’s 3^rd affidavit, p 23) Mr JK Beer, Manager Human Resources, Lonsdale Manufacturing Plant of Mitsubishi Motors, wrote to the plaintiff. In his letter Mr Beer informed the plaintiff that Mitsubishi Motors had received a copy of the determination of Review Officer Fender made on 9 March 1994 in relation to his workers compensation claim. He referred to that Review Officer making a finding that the plaintiff did not suffer a disability arising from his employment with Mitsubishi Motors. She had also made a finding that even if the plaintiff did suffer an incapacity resulting from the meeting on 16 August 1991, that incapacity was temporary in nature and had long since abated. Mr Beer wrote:
As you continue to be unfit for your normal duties with us, your contract of employment with the company is frustrated. On that ground, your contract of employment with the company is now at an end, and accordingly you are no longer required to report for work.
Mr Beer then referred to enclosing a bank cheque, “being the sum total of your accrued entitlements”. He gave a breakdown of the final payment. In the final paragraph of his letter he wrote:
It should be noted that we have included 2 weeks pay in lieu of notice as a matter of good faith. This payment is not a normal requirement under circumstances such as yours where a person is absent from work on unpaid leave with a certificate of incapacity extending past the period of notice.
On 27 November 1997 the plaintiff sent two facsimile transmissions to Mr Altorfer as Secretary, Mitsubishi Staff Super Fund. In the first he referred to Mr Altorfer being “fully aware that I became entitled to payment of sickness benefit from the staff fund on 19-2-92 to 19-2-94”. In the second he wrote to Mr Altorfer in these terms: “This is to inform you that until my claim against Mitsubishi for unfair dismissal has been finalised I do not wish you or the trustees to make a determination in regards to my entitlement pursuant to section C9(2)(a) of the funds trust deed & rules” (Exhibit P6, plaintiff’s 3^rd affidavit, p 40-41).
On 18 April 1998 the plaintiff sent a facsimile transmission to Mr T Breugem, Human Resources Mitsubishi Motors. The subject of the facsimile was: “Re: Proposed Settlement with MMAL”. By that facsimile transmission the plaintiff provided Mr Breugem with a copy of the letter dated 16 March 1994 that he had received from Mr Beer. The plaintiff then wrote (see Exhibit D1, CAA5, p 153):
(2)MR BEER CLAIMED THAT BECAUSE I WAS “… ABSENT FROM WORK ON UNPAID LEAVE WITH A CERTIFICATE OF INCAPACITY EXTENDED PAST THE PERIOD OF NOTICE” I HAD ‘FRUSTRATED’ MY CONTRACT OF EMPLOYMENT WITH MITSUBISHI.
(3)IN LIGHT OF THE CLAIM BY MR BEER I SHOULD HAVE BEEN PAID MY SUPERANNUATION BENEFITS PURSUANT TO RULE C9(2)(a) OF “MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION FUND”, HOWEVER, THIS DID NOT OCCUR BECAUSE THE FUND SECRETARY AND THE ACTUARYS WERE NOT ADVISED, BY MITSUBISHI, THAT MR BEER OF MITSUBISHI CLAIMED THAT I LEFT ON ACCOUNT OF SICKNESS.
(4)MY FAMILY & I REQUEST THAT YOU CORRECTLY INFORM THE FUND SECRETARY, TRUSTEES AND THE ACTUARYS OF THE REASON THAT MR BEER CLAIMED THAT I LEFT MITSUBISHI, THAT IS SICKNESS.
(5)MY FAMILY & I REQUEST THAT THE PROPOSED SETTLEMENT HAS TO INCLUDE A RESOLUTION OF MY SUPERANNUATION ENTITLEMENTS PURSUANT TO MR J BEER’S LETTER DATED 16-3-94 & RULE C9(2)(a) OF THE FUND.
(6)I TRUST YOU SHALL COMPLY WITH THIS REQUEST IN GOOD FAITH AND SPIRIT.
On 1 May 1998 David Smelt of Mitsubishi Motors Superannuation wrote to the plaintiff on behalf of MMAL Staff Superannuation Pty Ltd. The subject matter of the letter was: “Mitsubishi Motors Australia Staff Superannuation Fund”. In his letter Mr Smelt refers to a telephone conversation between himself and the plaintiff in which the plaintiff requested information on the Ill-Health benefit payable from the Superannuation Fund to him. Mr Smelt set out details of the benefit as at 1 May 1998 for “Ill‑Health benefit as at 31 March 1994” less “Leaving Service benefit paid 31 August 1994” (Exhibit P6, 3^rd affidavit of plaintiff, p 42).
By letter dated 14 May 1998 solicitors acting for Mitsubishi Motors wrote to solicitors then acting for the plaintiff. Whilst the letter is marked “WITHOUT PREJUDICE” it is before me in Exhibit P5, 2^nd affidavit of the plaintiff, p 3. In the letter Mitsubishi’s solicitor confirmed that whilst his client has instructed him to reject the plaintiff’s settlement proposal of $230,000, his client had instructed him that it is prepared to make a counter-offer of $20,000 in full and final settlement of all claims against his client arising from any work related issue, whether current claims or potential claims. (There was a further offer to forgive the plaintiff from the liability for costs orders already made against him).
The solicitor then wrote:
We also understand that a request has been made by your client to the Mitsubishi Motors Australia Superannuation Fund for the payment of a benefit on the basis of ill health. As you know that fund is run independently of our client. However we point out that as an incentive to settle this matter, our client would be prepared to direct the Trustees pursuant to clause A.7 of the Trust Deed to augment the resignation benefit that has already been paid to your client ($27,664.54 on 23 August 1994) to an amount which would be payable if your client was accepted by the Trustee for an ill-health benefit under clause 9(2) of the Trust Deed. The additional amount as at 1 June 1998 will be $58,883.57.
If this is accepted, then your client would not need to go through the process of satisfying the Trustees of the ill-health requirements and then money could be paid expeditiously.
As specified above, this offer is made completely without prejudice. It is also made with a denial of liability. It is however made in a genuine attempt to resolve the longstanding litigation between our respective clients.
By letter dated 24 September 1998 Mitsubishi’s solicitor wrote again to the plaintiff’s solicitor. The letter indicated that Mitsubishi had instructed him “to investigate whether it is possible to resolve the issues between the parties by way of formal mediation using an accredited mediator”. That procedure was suggested “because the informal meetings had not resulted in a resolution”. The letter indicated that Mitsubishi was prepared to pay for the cost of the mediator and agreed costs for legal representation for the plaintiff at the mediation if he so desired. The solicitor wrote that he believed that the mediation “should run for no more than one and a half days”. One of the possible mediators suggested was Mr Stephen Walsh QC.
In his letter the solicitor wrote that he expected that prior to the mediation the parties would need to enter into a mediation agreement. Such agreement would cover the question of confidentiality and “a prohibition against introducing into evidence in any proceedings or otherwise disclosing” anything said at the mediation should a settlement not be reached. It was further stated that the Mediation Agreement should include the “confirmation by each party that it enters into the mediation with a commitment to attempt to negotiate in good faith towards achieving a settlement of the issues” (Exhibit D1, CAA6, p 161).
A mediation by the accredited mediator, Mr Stephen Walsh QC, took place on at least 26 October 1998.
The plaintiff did not expressly tell me what was in his possession at the time the mediation commenced on 26 October 1998. However, I am satisfied and find that he had at that time a document partly headed “OUTLINE OF WHAT MITSUBISHI WISHES TO ACHIEVE”, the mediation agreement, and the Confidentiality Agreement. I find that before the mediation commenced on 26 October 1998 the plaintiff was provided with a copy of the outline of Mitsubishi wished to achieve during the mediation because he said as much in para [17] of a Statement of Claim he lodged in the Federal Court on 16 August 2007 (see Exhibit D1, p 191). This Outline is in Exhibit D1, CAA7, pp 158-159.
The “OUTLINE OF WHAT MITSUBISHI WISHES TO ACHIEVE” notes that the plaintiff had been pursuing claims against Mitsubishi, particularly since 1991, for various alleged compensable injuries. The Outline included:
Mitsubishi wishes to try to reach a final and overall settlement of all outstanding matters between itself and Mr Kowalski including the payment to Mr Kowalski of Superannuation and taking into account the amounts which are owed by Mr Kowalski to Mitsubishi for costs of his unsuccessful claims.
The Outline refers to the plaintiff as having recently (December 1997) had an operation as a consequence of a heart attack for which he blames Mitsubishi. “Whilst Mitsubishi denies liability for that heart attack, the information provided to Mitsubishi by Mr Kowalski, states that the attack is related to the stress of litigation processes”. The Outline contained a “SUMMARY OF MITSUBISHI ISSUES” which included the following:
1.Identification of outstanding litigation and any future litigation.
2.Clarifying the amount payable to Mr Kowalski for superannuation.
…
4.Achieving a final and overall settlement of pending and future litigation.
…
7.That this mediation not be a venue for determination of legal issues and factual disputes between parties but an attempt to see if this process can be avoided in the future by resolution now.
Annexure CAA9, pp 158-159 of Exhibit D1 is a handwritten page under the heading “5 SCHEDULE (Briefly identify the matter in dispute)”.
In a number of the plaintiff’s early affidavits he annexed a document headed “MEDIATION AGREEMENT”. For example, in his 2^nd affidavit (Exhibit P5, pp 11-14) he annexed the Mediation Agreement signed by him, Mr Breugem on behalf of Mitsubishi Motors, and the Mediator Stephen Walsh. That document was of four pages. There was no page numbered “5”. Attached to that Mediation Agreement in the plaintiff’s 2^nd affidavit is the Confidentiality Agreement dated 26 October 1998 and signed by the plaintiff’s wife Hannah Kowalski, Patricia Dean, Robyn Layton QC, Ralph Bönig, Mr Breugem, and Mr Peter Boettcher, but not the plaintiff (Exhibit P5, p 15).
In Exhibit P7, the plaintiff’s 4^th affidavit sworn 4 November 2015, the plaintiff swore in para [9] that he had “provided the District Court a copy of the Mediation Agreement which was signed by Kazimir Kowalski and by Antonie Breugem, only for and on behalf of Mitsubishi Motors Australia Limited, not for and on behalf of the Mitsubishi Motors Australia Staff Superannuation Fund”.
In Exhibit P8, the plaintiff’s 5^th affidavit sworn 4 November 2015, the plaintiff again annexed the Mediation Agreement, but with only the first three pages, and the Confidentiality Agreement.
In Exhibit P12, the plaintiff’s 9^th affidavit sworn on 18 December 2015 “in reply to David Allan Smelt’s affidavit dated 9-11-2015”, the plaintiff again annexed the Mediation Agreement of four pages and the Confidentiality Agreement (pp 8-13). However, in this affidavit the plaintiff included a page 5 of the Mediation Agreement (at p 12). This single page was the single page attached to Exhibit D1 filed on 7 October 2015 (CAA9, p 162). This single page is also initialled by a number of people, including the plaintiff, in the same way as the first four pages of the Mediation Agreement.
In Exhibit P13, the plaintiff’s 10^th affidavit sworn on 8 February 2016, the plaintiff swore this in para 2: “Recently I discovered a copy of the facsimile that Mr S Walsh QC had faxed to me on 26 October 1998, at 19.05PM”. The plaintiff told me that he had discovered it when he was searching his papers to see if he could find anything that might be relevant in answer to an affidavit of Mr Smelt. He told me that he received the 10 page fax from Mr Walsh just after 7.00 pm on 26 October 1998 and that he had had it in his possession ever since it had been faxed to him over 18 years ago. He had forgotten about it and only discovered it late in 2015 when preparing one of his affidavits. It must have been either his 9^th or 10^th affidavit as it was not referred to having been discovered by him in any affidavit before his 10^th affidavit which was filed on 4 February 2016. His 9^th affidavit is headed as being in reply to a Smelt affidavit.
The date and time of transmission of these documents is seen upside down on the bottom of the pages attached to the plaintiff’s 9^th and 10^th affidavits. It appears that the fax came from Edmund Barton Chambers, where Mr Stephen Walsh QC then practised as a barrister.
This does not, of course, explain why it is that the Mediation Agreement without page 5 and the Confidentiality Agreement, that were attached to the plaintiff’s 2^nd and 5^th affidavits, filed on 16 October 2015 and 4 November 2015 respectively, each contain exactly the same pages of the Mediation Agreement and Confidentiality Agreement that are in his later affidavits (although absent page 5 in each case) and with exactly the same header from Edmund Barton Chambers with the same date and the same time. The upside down header on all these pages is identical in each case (except for the page number).
I am satisfied and find that the five pages of the Mediation Agreement, where page 5 is the handwritten Schedule, and the one page Confidentiality Agreement were in the plaintiff’s possession before the mediation, were read by him and were understood by him, and the Mediation Agreement was signed by him. I am further satisfied and find that his wife, Hannah Kowalski and Patricia Dean (a friend whom they brought to the mediation) signed the Confidentiality Agreement on 26 October 1998 before the mediation commenced. I find that each of these people understood what they were signing and did sign.
I shall return to the 10 page facsimile apparently sent to the plaintiff by Mr Walsh in the evening of 26 October 1998.
By the Mediation Agreement dated 26 October 1998 and signed by all parties before the mediation commenced, the “Mediator and the parties and all people brought into the mediation by either party (each of whom shall sign a confidentiality agreement in the accompanying form) will not seek to rely on or introduce as evidence in arbitral or judicial proceedings whether or not the proceedings relate to this dispute” what happened at the mediation. There were other terms of the Mediation Agreement including that: “Each party confirms that it enters into this mediation with a commitment to attempt in good faith to negotiate towards achieving a settlement of the dispute”.
What I have found to be page 5 of the Mediation Agreement, signed by the plaintiff and others before the mediation commenced, was probably written by Mr Walsh. It sought to “briefly identify the matters in dispute”. It read in part:
All issues between Kazimir Kowalski and Mitsubishi Motors Australia Ltd arising from the employment of Kazimir Kowalski by Mitsubishi Motors Australia Ltd and its predecessors and including:‑
1.Any entitlement that Kazimir Kowalski has as a result of the termination or cessation of his employment with Mitsubishi Motors Australia Ltd including superannuation, sickness benefit or otherwise.
The schedule also identified any entitlement that the plaintiff had to workers compensation benefits arising from his employment as a result of any heart attack he suffered, any low back injury he suffered, any injury to his right middle finger, an eye injury and as a result of his mental breakdown in August 1991.
The final issue in dispute was stated to be: “Any future claim which Kazimir Kowalski may make in the future in relation to his employment with Mitsubishi Motors”.
The Confidentiality Agreement, which was not signed by the plaintiff but by his wife and Patricia Dean and representatives of Mitsubishi including their legal representatives before the mediation, had the effect of each agreeing that they would “preserve total confidentiality in relation to the course of the proceedings in (the) mediation”.
I heard no direct evidence as to what occurred and what was said at the mediation or by whom. I heard some indirect evidence as to what the plaintiff told others as to what he said and what was said to him at the mediation. In particular, it appears that the plaintiff told his union that he had asked for a total and permanent disablement benefit at the mediation. The plaintiff told me that he had asked for that at the mediation and that it had been refused at the mediation. This is consistent with the evidence before me that the plaintiff told Mr Smelt in a telephone conversation early in the morning of 27 October 1998 that he had attended a mediation the day before on 26 October 1998, and that he had gone into the mediation meeting the day before “with a view within himself that he was going to receive a permanent disablement benefit even though this had never been suggested by MMAL”. Mr Smelt had told him in that conversation that he would not be TPD, based on the information in the file in his office. I find that this conversation included these statements.

Whilst I have no evidence other than from the plaintiff as to what happened at the mediation on 26 October 1998, I infer that a draft Heads of Agreement was prepared and initialled by some of those present at the mediation before it concluded on that day. This document is partly in typescript and partly in handwriting. I find that the handwriting on it is the handwriting of the Mediator, Mr Walsh. I find that this three page document existed by the end of 26 October 1998 because it is, and I find it to be, the last three pages of 10 pages faxed by Mr Walsh to the plaintiff just after 7.00 pm on the evening of 26 October 1998.
This document appeared for the first time before me in Exhibit P10, the plaintiff’s 7^th affidavit sworn on 19 November 2015. In that exhibit there appears Mr Walsh’s facsimile coversheet dated 26 October 1998 (p 1). The coversheet indicates that there were 10 pages faxed, including the header. The coversheet seems to be numbered “001” (upside down in the bottom left-hand corner). I am satisfied and find that the nine other pages faxed to the plaintiff by Mr Walsh just after 7.00 pm on the evening of 26 October 1998 were the five page Mediation Agreement, the one page Confidentiality Agreement, and the three page draft Heads of Agreement. Only the later appears in Exhibit P10 (pp 4-6). Pages 2 and 3 of this exhibit is the “OUTLINE OF WHAT MITSUBISHI WISHES TO ACHIEVE” which I have found that the plaintiff had before the mediation commenced.
Before me the plaintiff described the draft Heads of Agreement as “the 1^st version of the Heads of Agreement”. He said that it was the agreement that was entered into by the parties on 26 October 1998, notwithstanding that he maintained that it and all other versions of the Heads of Agreement were void.
I infer and find that during the course of 26 October 1998 a document headed “HEADS OF AGREEMENT” was typed up and then further discussed, with the Mediator making changes and additions to it. I find that the parties initialled the document but I cannot find upon what precise basis they did so. I consider it most likely that they initialled the draft to indicate their “in principle” agreement to the principal terms of it.
The preamble to this document records that the plaintiff and Mitsubishi Motors had “reached an agreement in relation to the resolution of all issues and wished to record the terms of settlement”. The document records that:
1Kowalski on behalf of himself and his dependents hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have superannuation, sick leave, compensation (income maintenance or medical expenses), and damages arising out of or in the course of his employment with MMAL. In particular the said sum includes payment in full and final settlement of:
…
1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.
The above is in typescript. Also in typescript is paragraph 2 which records that:
2The said sum of $200,000 is to be (indecipherable) or paid to Kowalski in the following manner:
2.1 The sum of $64,691.43 to be paid from the Superannuation Fund (indecipherable).
This paragraph 2 has been altered by Mr Walsh in a number of ways. Paragraph 2.1 is altered to read: “The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill-health benefit being the entitlement with respect to the period from 7 March 1970 to date of cessation of employment”.
This document contains other paragraphs, both in typescript and in Mr Walsh’s handwriting. In paragraph 4 there appears in typescript that:
4In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependents agree
4.1 Not to institute any legal proceedings and/or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof (nor to join Mitsubishi as a defendant in the Action against RJ Cole & Partners – is added in handwriting).
By paragraph 1 the plaintiff agreed on behalf of himself and his dependants to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, which includes payment in full and final settlement of any superannuation payable by the MMAL Staff Superannuation Fund.
Page 3 of the document has, in Mr Walsh’s handwriting, a signing space indicated for the plaintiff, but not for Mrs Kowalski. The plaintiff and Mitsubishi Motors have each initialled each of the three pages.
I am satisfied and find that Mr Walsh faxed this 10 page fax to the plaintiff at about 7.00 pm on 26 October 1998 because the plaintiff had asked him to. I find that the plaintiff asked Mr Walsh to do so, so that he could consider it overnight.
I am satisfied and find that the plaintiff had Mr Walsh’s 10 page fax over the evening and night of 26 October 1998. I am satisfied and find that the plaintiff understood at all times, both in the time before the mediation and during it on 26 October 1998, that all issues in dispute between he and Mitsubishi and any part of Mitsubishi, including the Staff Superannuation Fund, were to be and were the subject of the mediation.
I find that that understanding was consistent with his wishes, his intention, and the request he and his family expressed in his fax to Mr Breugem on 18 April 1998. That included an express “request that the proposed settlement has to include a resolution of my superannuation entitlements pursuant to Mr J Beer’s letter dated 16-3-94 and rule C9(2)(a) of the Fund”.
I also find that the plaintiff understood at the mediation that Mr Breugem was there representing both Mitsubishi Motors and the Superannuation Fund. That was why he asked, or “applied” for, a TPD benefit during the mediation. Further, I find that the plaintiff knew by the time of the mediation that Mitsubishi Motors was prepared to direct the Trustee of the Fund pursuant to the Trust Deed. He knew this from Mitsubishi Motors’ solicitor’s letter to him dated 14 May 1998.
I am satisfied and find that the plaintiff intended that the three page draft Heads of Agreement initialled by him before the mediation was adjourned on 26 October 1998 was to reflect, by his and the others’ initials, an in‑principle settlement of all issues between he and Mitsubishi, including any superannuation payable by the MMAL Staff Superannuation Fund. I am satisfied and find that the plaintiff understood, when he read this document that night that it recorded his agreement to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages, and included any superannuation payable by the MMAL Staff Superannuation Fund. I find that those words meant to the plaintiff precisely what they obviously said and mean.
Further, I am satisfied and find that the plaintiff was aware in the evening of 26 October 1998 that he had agreed to accept a sum which included a settlement for any superannuation entitlements he had, whether they be for total permanent disablement (TPD), or otherwise. He told me that “during the settlement I applied for a TPD benefit and they said I wasn’t entitled to one”. The plaintiff would have been aware that the settlement sum of $200,000 was not significantly less than the sum of $230,000 he had instructed his solicitors to offer as an “overall settlement” earlier that same year, which settlement proposal had been rejected by Mitsubishi and replaced with a much lower offer of $20,000 but which included a promise by Mitsubishi to direct the Trustees of the Superannuation Fund to augment a resignation benefit already paid to the plaintiff on 23 August 1994 to an amount which would be parable to him if he was accepted by the Trustee for an ill-health benefit under clause 9(2) of the Trust Deed. The additional amount would be $58,883.57.
There is no doubt in my mind that the plaintiff knew on 26 October 1998 that the draft Heads of Agreement which was settled in principle on that day was in full and final settlement of everything, including any entitlement he had to a superannuation benefit of any sort, including any entitlement to a TPD. That was his expressed wish, it was, so far as I can say, “negotiated” at the mediation, and that was what was clearly and unambiguously reflected in the draft Heads of Agreement of 26 October 1998, the next draft of 27 October 1998, and the final executed one dated 27 October 1998.
I do not know precisely what happened over the night of 26 October 1998 but obviously, and I find, it was anticipated by the parties that the draft which had been initialled by the parties would be engrossed for signing the next day, or for further consideration and then for final signing the next day. I am satisfied and find that the plaintiff knew by then, or at least by early the next morning, that his wife would need to attend the following day to sign the final agreement.
At 9.00 am on Tuesday 27 October 1998 the plaintiff telephoned David Smelt. At that time Mr Smelt was an employee of Mercer Human Resource Consulting Pty Ltd (“Mercer”). Mercer was the administrator of the Mitsubishi Motors Australia Staff Superannuation Fund. As administrator of the Fund Mercer’s role was to act as liaison between members of the Fund, the Trustee and, in certain circumstances, any insurer of the Fund. Mercer did not make decisions in respect of claims. That was the role of the Trustee and Mercer had no power to bind the Trustee.
Mr Smelt made a file note of his conversation with the plaintiff on the morning of 27 October 1998. Mr Smelt swore that his file note was an accurate record of this conversation.
Mr Smelt swore further that until he spoke with the plaintiff that morning he was not aware that the plaintiff and Mitsubishi Motors had intended to attend mediation, nor that it had occurred the day before. Mr Smelt’s file note is exhibited to Exhibit D3, his affidavit sworn on 9 November 2015, and is in Exhibit D1, CAA10, p 163-164.
During his conversation with the plaintiff Mr Smelt advised him that he had spoken to Tony Breugem the day before and had provided Mr Breugem with copies of pages from the Fund’s trust deed in respect to TPD. Mr Smelt did not know when he spoke to Mr Breugem that Mr Breugem had requested copies of those pages for the purpose of the mediation with the plaintiff.
Also, during his conversation with the plaintiff that morning, Mr Smelt advised the plaintiff that in respect of his TPD claim he (Mr Smelt) would need to contact SGIC to find out which doctors reports were considered when the plaintiff was assessed for TPD but that would take some time due to the changes since 1992, the date his claim was originally declined. He advised the plaintiff that he would contact Tony Breugem and discuss his case and determine what further consideration the plaintiff’s claim should receive.
Mr Smelt swore in his affidavit that was exhibited before me as Exhibit D3 that his discussion with the plaintiff on 27 October 1998 which is recorded in his file note, was in the context of the plaintiff’s existing claim for a TPD benefit. His discussion with the plaintiff was without regard to what might be agreed to the contrary in the settlement discussions. At the time he did not tell the plaintiff that any claim he had to a TPD benefit would be considered irrespective of the outcome of any settlement discussions, the content of which he was unaware. Mr Smelt swore that he had no authority to give any such assurance or representation on behalf of a Trustee. Mr Smelt was not aware that there was a proposed Heads of Agreement which stated, amongst other things, that the parties had reached an agreement in relation to the resolution of all issues, and that those issues included any entitlements he may have to superannuation. He was not aware that a proposed Heads of Agreement provided for a sum of nearly $65,000 to be paid from the Superannuation Fund. He did not know that any such terms were under discussion between the parties.
I am satisfied and find that the facts to which I have just referred as to the telephone conversation between Mr Smelt and the plaintiff on the morning of 27 October 1998 are as I have set out above.
I am satisfied and find that the plaintiff had initialled the draft Heads of Agreement on the evening of 26 October 1998 after he had “applied” or asked for a TPD benefit at the mediation earlier that day and he had been told that he was not entitled to one. I am satisfied and find that the next morning, whilst he knew that the draft Heads of Agreement did not provide him such a benefit and that it settled all his superannuation entitlements, he told Mr Smelt that he believed that he was effectively still employed by Mitsubishi Motors and therefore should now be considered for a TPD benefit. I find that the plaintiff did not believe he was still employed by Mitsubishi Motors. I find that he knew he was not, and that he had transposed two paragraphs in Mr Beer’s letter to him dated 16 March 1994 so that it read that as he “was absent from work on unpaid leave with a certificate of incapacity extending past the period of notice … he had frustrated his contract of employment with Mitsubishi” and therefore was entitled to resignation benefits from the Superannuation Fund” (Exhibit D1, CAA5, p 153-154). This was not what was written in Mr Beer’s letter.
I am satisfied and find that the plaintiff was told by Mr Smelt that he would not get a TPD benefit based on the information within the file held in his, Mercer’s, office. I am satisfied and find that Mr Smelt told the plaintiff that “his current situation and his heart and blood pressure condition did not automatically make him TPD as they have happened after he ceased employment and were not a factor in his cessation of employment”. This is consistent with the letter received by the plaintiff when his services were terminated (dated 16 March 1994, Exhibit D1, CAA5, p 155) although the plaintiff has read that letter in a different way to suit his own purposes, and is consistent with what he was told at the mediation.
After this telephone conversation with Mr Smelt the plaintiff attended somewhere with his wife and representatives of Mitsubishi Motors. I infer that someone at Mitsubishi Motors had re-engrossed the draft in-principle Heads of Agreement (the plaintiff’s 1^st version) to incorporate into typescript Mr Walsh’s handwriting. When re‑engrossed the document contained not only Mr Walsh’s handwriting but some other changes. This “2^nd version” appeared for the first time in Exhibit P13, the plaintiff’s 10^th affidavit sworn on 8 February 2016. Relevantly, paragraph 2.2 of the draft Heads of Agreement from the previous day was split into three subparagraphs in the 2^nd version. The sum of $125,308.57 in the original was split into three sums which together made up the same sum as in the original. Further, paragraph 2.2 was changed so that the sum in it was to be paid by MMAL as an ex gratia payment as compensation for permanent disability, etc. rather than as compensation for permanent disability, etc. The 2^nd version also provided for signing by Hannah Kowalski.
I am satisfied and find that on the morning of 27 October 1998 the plaintiff and representatives of Mitsubishi discussed the new draft and agreed to it subject to a number of changes. The first had the effect of restoring the sum of $125,308.57 in paragraph 2.2 of the document and deleting the added new paragraphs 2.4 and 2.5. The only other change was the addition of a new paragraph 5.4.
I infer and find that after both the plaintiff and the representatives of Mitsubishi Motors agreed to those changes, the final version (which the plaintiff referred to as the 3^rd version) was engrossed and executed by everyone present.
I am satisfied and find that this final version is the Heads of Agreement which has been the subject of litigation between the parties for years subsequent to 27 October 1998, and it is the Heads of Agreement the parties agreed to and executed on 27 October 1998, each understanding what they were agreeing to and agreeing to be bound by.
I am satisfied and find that the plaintiff then understood, in particular, that the $200,000 referred to included a sum to be paid from the Superannuation Fund, the sum was in settlement of all claims he had or may have in respect of superannuation, and that he had agreed, in consideration of such sum, not to institute any legal proceedings in respect of any superannuation which may be payable by the MMAL Staff Superannuation Fund.
I have no doubt as to these findings. I find that the plaintiff intended that the Superannuation Fund be bound by the agreement into which he had entered with Mitsubishi Motors. He understood that Mr Breugem was there representing the Superannuation Fund as well as Mitsubishi Motors.
On 5 November 1998 Mitsubishi Motors Superannuation wrote to the plaintiff regarding his “Superannuation Entitlements”. Enclosed were two calculations, “one for the Staff Fund that replicates the amount of $63,753.347 and another relating to additional monies payable from the Employees’ Fund of $938.06 on the basis of acceptance for an ill-health benefit”. The sum of those two amounts is $64,691.43. This is the same sum referred to in paragraph 2.1 of the executed Heads of Agreement dated 27 October 1998 which indicated that that sum was to be paid from the Superannuation Fund as part of the settlement of $200,000 in full and final settlement of any entitlements that the plaintiff may have to superannuation, sick leave, compensation and damages. This letter and its attachments are in Exhibit D1, CAA12, pp 169-171. Also in that attachment is a signed document of the Subcommittee of MMAL Staff Superannuation Fund Pty Ltd, which was appointed by the Trustee, by which it is confirmed in respect of the plaintiff that the subcommittee “concur with the decision to admit this claim for an Ill-Health benefit” (p 173). That is dated 17 November 1998.
I am satisfied and find that the plaintiff received the letter of 5 November 1998 and its attachments in early November 1998. I am satisfied and find that he understood it to be a consequence of the agreement he had reached and executed with Mitsubishi Motors on 27 October 1998 whereby the Staff Superannuation Fund would pay $63,753.37 which was part of the overall settlement of $200,000, and in consideration of which he agreed not to institute any legal proceedings in respect of any matter relating to his superannuation. I find that the plaintiff knew and understood all of this.
Whilst I am satisfied of these matters the plaintiff was not happy with the settlement he had effected with Mitsubishi, which included any superannuation entitlements he may have. I find that that unhappiness evolved after he had received the $200,000 in full settlement of all matters. He ruminated on this, particularly a grievance he felt that he was not given and did not receive a TPD benefit separately from the $200,000 he did agree to receive, and did receive. He almost immediately set out to make his grievance known and to make up reasons why he could continue to pursue payment of a TPD despite knowing that he had forgone that within his overall settlement with Mitsubishi Motors for $200,000. To get a TPD benefit has been the plaintiff’s focus, and eventually his obsession, since December 1998 / January 1999, and continuing.
I refer later to the various means by which the plaintiff has sought to claim that he is not bound by the executed Heads of Agreement dated 27 October 1998.
On 14 January 1999 Mitsubishi Motors’ solicitor wrote to the plaintiff regarding the Mitsubishi Motors Australia Staff Superannuation Fund. The letter is as follows (Exhibit D1, CAA12, p 174):
Dear Sir,
Mitsubishi Motors Australia Staff Superannuation Fund
We advise that our attention has been drawn to correspondence passing between yourself, Mitsubishi Motors Superannuation Fund and Mr Smelt of Mercers in relation to the calculation of your superannuation entitlements. It appears from that correspondence that you are suggesting that the Superannuation Fund may be obliged to make a further payment to you.
We draw your attention to the terms of the Heads of Agreement signed by you on 27 October 1998. In particular, we point out that pursuant to paragraph 1 of the Agreement you agreed to accept the sum of $200,000 in full and final settlement of any entitlements you may have “… to superannuation, sick leave, compensation and damages arising out of or in the course of…” your employment with Mitsubishi. Further, in paragraph 1.4 you agreed to accept that payment in full and final settlement of “Any superannuation payable by the MMAL Staff Superannuation Fund”. Pursuant to paragraph 2 of the Agreement the sum of $200,000 included a payment from the Superannuation Fund in full satisfaction of its obligations to you in respect of the period 7 March 1970 to the date of cessation of your employment. Further, paragraph 2.3 represents a payment by MMAL in the sum of $10,000 in consideration of you foregoing any future claims in any way arising from your employment. We note that the sum of $200,000 has been paid and received by you.
We also point out the following for your consideration. As you are aware, the settlement is structured on the basis that Mitsubishi would “top up” any superannuation payment you were entitled to by making an ex gratia payment to you. Pursuant to the Heads of Agreement your total settlement entitlement is capped at $200,000 (including any superannuation entitlements). In the event that you were to receive a further payment from the Superannuation Fund, then the total amount received by you would exceed the $200,000 that you are entitled to pursuant to the Agreement. In those circumstances Mitsubishi would be entitled to be reimbursed by you in an amount equivalent to any further payment made.
Pursuant to the terms of the Heads of Agreement, any claims both past, present or future that you may have on Mitsubishi and the Mitsubishi Motors Superannuation Fund have been resolved and satisfied. In the circumstances, we fail to see what benefit can be gained by you engaging in correspondence with either Mitsubishi or Mr Smelt in relation to the calculation of your superannuation.
Mitsubishi has honoured its part of the settlement and we ask that you do also. We therefore ask that you do not engage in any further correspondence with Mitsubishi, Mr Smelt or any other organisation on this topic.

In his judgment Bleby J then set out in full the Heads of Agreement. Although I do not reproduce that here it is the document dated 27 October 1998 which is Annexure CAA11 of Mr Altorfer’s first affidavit (Exhibit D1).
After referring to many applications and decisions for six years after 27 October 1998 Bleby J wrote this (at paras [273]-[274]):
Despite these findings, the defendant has continued to argue in various forums that parts of the Heads of Agreement are invalid and should be set aside. He is unwilling to accept that his arguments have been found, on numerous occasions, to be misguided and wrong and so he pursues them relentlessly. The defendant also continues to assume that he is automatically and without question entitled to certain rights, for example to income maintenance, when this assumption is incorrect.
Over the course of the various proceedings involving the defendant, including the hearing of the present application, he has frequently made accusations of professional misconduct by his own former lawyers, by those representing the plaintiff by members of the Workers Compensation Tribunal and by members of the judiciary. He seems to believe that the entire South Australian legal profession is engaged in a conspiracy against him. On numerous occasions he has been warned that, were it not for special allowances which have been made for him as an unrepresented litigant, he would have been held in contempt.
Mr Cox also referred me to a decision of Finn J in the Federal Court. This was a decision in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 3) [2009] FCA 53 dated 5 February 2009. In that judgment Finn J said this (at paras [67]-[68]):
While Mr Kowalski vigorously disputes the accuracy and often the veracity of much of the documentary evidence before me, his concerns have only slight bearing on the issues I need address. I have little regard for his regular assertions of bad faith, as freely made as they are unsubstantiated. And I treat with considerable reserve his interpretation of the motives of others, his own evidence from the bar table and his general narrative of the events. Moreover, his application and pleading, as will be seen, are as notable for what they leave unchallenged as for what they challenge.
Doing the best I can with the underlying material which is said to found the complaints made, and conscious of the opportunities I have given Mr Kowalski to propound a cause of action, albeit in lay terms, I have as I have foreshadowed, concluded that the proceedings should be summarily dismissed. While it will not often be the case that a Court will be required to – or should properly – conduct as detailed an examination of the materials put on by the parties as I have, this is not an ordinary proceeding with an ordinary and uneventful provenance. The evolving manner in which Mr Kowalski has perceived his grievances and has formulated them to secure the relief he has in mind, has necessitated that I conduct in essence a “preliminary trial”: Jefferson Ford, at [23].
Finn J then dealt briefly with the factual material chronologically “focussing primarily upon those matters which have led me to my conclusion”. He set out his conclusions (at paras [90]-[96]) as follows:
While this matter has been heard before the respondents put on a defence, they have foreshadowed that if they had been required to do so they would have raised the mediation agreement as a complete defence to the claim made.
The basis of this defence, as I understand it, is that when considered in its context, it is clear that, while the Trustee was not a party to the agreement, it was nonetheless the beneficiary of the promises made by Mr Kowalski that (i) the sum of $64,691.43 “to be paid from the Superannuation Fund” was payment in full and final settlement of any superannuation payable by the Trustee; and (ii) that Mr Kowalski would not institute any legal proceedings in respect of the matter in (i) above.
I readily acknowledge that the trust device has in practice proved “a disappointing and unreliable instrument” for circumventing the privity doctrine: see Cheshire and Fifoot’s Law of Contract, [7.44] (9^th Aust ed, 2008). Nonetheless, in this particular setting both where trust and contract so obviously interact: see Dal Pont and Chalmers, at 727; and where the contracting parties intent was, on the face of the Heads of Agreement, to bring the Trustee within its purview so both to benefit and to burden it, the observations of Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 147-148 are singularly apposite. His Honour observed that the requisite intention of the contracting parties to constitute a trust of a promise for a third party should be inferred:
… if it clearly appears that it was the intention of the promise that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity’s requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promise.
… If the trustee of the promise declines to institute [proceedings for the enforcement of the promise or damages for its breach], the beneficiary can bring proceedings against the promisor in his own name, joining the trustee as defendant.
See also Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618; Ford and Lee, Principles of the Law of Trusts, [17.11010]. It is not necessary that the contracting parties know and understand that they are creating a trust. It is sufficient that they intend to create a relationship which, in equity, conforms to that of a trust: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71]; Ford and Lee at [2035].
While it is not strictly necessary that I express a concluded view on this foreshadowed defence, and while I share the view of Fullagar J in Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 at 67 that it is “difficult to understand the reluctance which courts have sometimes shown to infer a trust in such cases” – a reluctance I acknowledge – I am satisfied that having regard not only to the text of the agreement but also to the known surrounding circumstances and the purpose and object of the contract: cf Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; a court would readily infer a trust intention in this matter.
While ordinarily MMAL would be a necessary party to the raising of such a defence: see Lidden v Composite Buyers (1996) 67 FCR 560; see also Jacobs’ Law of Trusts in Australia, [2303] (7^th ed, 2006); the respondents acknowledge were the matter to proceed to trial, MMAL could be joined as a party for the purpose of enforcing the trust.
I should add that, while the Trustee did not seek to insist on its rights for the purpose of the 2001 reconsideration – and properly so given Mr Smelt’s assurance at the time of the mediation agreement that he would raise the TPD claim with Colonial – the Trustee has done nothing that could be said (i) to amount to a renunciation of its rights; or (ii) to found an estoppel against it for the future.
Given this available defence, I am satisfied it provides a further basis for concluding that Mr Kowalski’s application has no reasonable prospects of success.
Mr Cox did not refer me to the decisions of Bleby J and Finn J as binding on me to find that the plaintiff is estopped from bringing the application which is before me by virtue of the Heads of Agreement. He acknowledged, and I acknowledge, that that issue was determined by Blue J in his judgment of 20 August 2015. But it is clear from his decision of that date that Blue J did not determine whether the proposed defendants (the defendants in this action) could or could not rely on a defence based on the Heads of Agreement independently of issue estoppel. Justice Blue set out why it was not possible for him to determine that within the matter before him (see paras [192]-[199]). On 8 December 2015 he declined, on the application of the plaintiff during the hearing before me, to “correct” these paragraphs so as to preclude the defendants raising or relying on a defence based on the Heads of Agreement independently of issue estoppel.
One of the plaintiff’s submissions before me on the two applications that I have to consider and decide was that Blue J did decide this issue, and that the defendants here are thereby estopped from arguing that I should award summary judgment in their favour “in the face of the terms of the Heads of Agreement, properly construed in all the circumstances surrounding its execution”. The plaintiff submitted that I should dismiss the defendants’ application on the ground that Blue J had decided, in his decision of 20 August 2015, the issue that they sought to raise here.
My view is that Blue J did not decide that the defendants were estopped from bringing their application before me on the plaintiff’s action here. The plaintiff went further before me and submitted that by virtue of Blue J’s decision he is entitled to summary judgment on his action in this Court. I return to that shortly.
Mr Cox also referred me to a decision of Mansfield J in the Federal Court. This was Kowalski v AMP Superannuation Limited [2010] FCA 1170. In that matter Mansfield J was considering an application to dismiss summarily an application the plaintiff brought against AMP Superannuation Limited. In that decision Mansfield J said this (at paras [83]-[87]):
In the present case, in my view the materials filed by the applicant, and the application and amended statement of claim do not disclose a coherent, intelligible complaint giving rise to a genuine and sustainable cause of action.
As to fraud, in essence, the applicant alleges that the Trustee’s decision in about 1998 was fraudulent because he identifies some evidence available to the Trustee upon which it might have reached a different decision, or because an officer of the Trustee told him in 1998 that that officer or the Trustee through that given officer did not consider that he was entitled to a TPDB payment. The pleading also refers to correspondence on behalf of the Trustee, in the period 2000-2004, to the effect that the Trustee did not receive in about October 1998 an application by the applicant for a TPDB payment, and that the Trustee did not participate in the mediation.
Those allegations, even if proved, cannot sustain the claim that the Trustee in 1998 acted fraudulently as alleged. The facts asserted could go no further than showing that the Trustee or its representative had, and expressed, a view that the applicant was not entitled to the TPDB at the time, and that there was some evidentiary material which may have supported a different view. That is a long way short of asserting material facts which could show fraud. The fact that the applicant disagrees with the Trustee’s conclusion also does not tend to show fraud.
The application is also an attempt by the applicant to re-agitate decisions that have been decided adversely to him by the Trustee, the predecessor of the respondent, and which were not the subject of any successful challenge to the Superannuation Complaints Tribunal, or to the Court. Moreover, as noted above the applicant has brought other proceedings against the respondent or its predecessor the Trustee of the Fund. Each of those proceedings has been unsuccessful. They involved contested applications, appeals and applications for leave to appeal and for special leave to appeal to the High Court. The applicant was ultimately unsuccessful. It would be an abuse of process to allow the application in the present proceeding to be maintained because the same issues have been litigated previously, even though the precise expression of the claims and the precise remedies claimed are not identical. In all essential respects the issues are the same.
In particular the issues raised in the proceedings before Finn J referred to above, are essentially the same as the issues sought to be raised in this application. As noted above the application was for an order that the Trustee pay him “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of about $280,000.00”. Similarly, in this application, the claim is for the almost identical orders, that the respondent pay to the applicant “his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of $380,000”.
Whilst the defendants relied upon this case in their application before Blue J when they opposed permission being given to the plaintiff to institute these proceedings, Blue J found that because of the fact that Mansfield J held that the plaintiff’s claim should be summarily dismissed, Mansfield J had not made a final decision on the merits within the jurisdiction of the Federal Court on the Heads of Agreement, and therefore that did not preclude the plaintiff from bringing this action.
Mr Cox also referred me to a decision of Stone J in the Federal Court in Soden v Kowalski [2011] FCA 318. In paras [3]-[8] Stone J set out the factual background as follows:
The factual background outlined below is taken from unchallenged evidence adduced at the hearing and factual findings made in a number of proceedings in which the respondent was a party. It also accords with the background as set out in the written submissions of the applicants in both proceedings. The respondent did not take issue with the factual history as stated in the submissions.
The events which began the respondent’s long history of litigation began with his employment with Mitsubishi (then Chrysler Australia Limited) commencing on 16 January 1964. The respondent initially was employed as a fitter and turner. In the next few years he qualified as a mechanical technician (1969) and as a draftsman (1970). On 20 April 1972 Mr Kowalski joined the Australian Military Forces where he served as a regimental and mechanical draftsman until 19 October 1973; see Kowalski v Repatriation Commission [2009] FCA 794 at [2] – [4].
After his discharge from the Military Forces the respondent was again employed by Mitsubishi. His last attendance at work with Mitsubishi was on 16 June 1991; Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 at [5]. The respondent claims that during his employment with Mitsubishi or as a result of it he suffered various injuries and emotional distress as well as experiencing a heart attack, developing Type 2 diabetes, obesity, and carpal tunnel syndrome. From 1989 onwards the respondent brought numerous claims against Mitsubishi in the Workers Compensation Tribunal and the District Court of South Australia seeking compensation for alleged work related injuries.
Heads of Agreement – 27 October 1998
In October 1998, following mediation between them, Mitsubishi and the respondent entered into an agreement which was styled, Heads of Agreement and dated 27 October 1998. The terms of the Agreement are set out in Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 at [7]. The Agreement provided that Mitsubishi would pay $200,000 to the respondent “in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment” with Mitsubishi. Mitsubishi also agreed to forgo recovery of legal costs owed by the respondent and not to seek repayment of monies previously paid.
In his turn, the respondent agreed not “to institute any legal proceedings and or legal complaints with any Court, Tribunal or body” in respect of specific grounds of complaint set out in the Agreement and to discontinue all actions and proceedings then subsisting between him and Mitsubishi. Pursuant to this Agreement, on 3 and 5 November 1998, consent orders were made in the compensation proceedings referred to above dismissing all claims made by Mr Kowalski.
Despite the Heads of Agreement and Mitsubishi’s payment of $200,000 pursuant to the Agreement the respondent continued to institute proceedings against Mitsubishi alleging, inter alia, that the Agreement should be set aside on the ground that Mitsubishi did not negotiate it in good faith and that he signed it under duress; see, for instance, Kowalski v Mitsubishi Motors Ltd [2001] AIRC 1212 at [11] – [16]. Mr Kowalski apparently sees no inconsistency between this stance and his view that he is not obliged to return the money paid by Mitsubishi.
Justice Stone then discussed other claims brought by the plaintiff which had been dismissed by Besanko J.
Justice Stone concluded that he was satisfied that the plaintiff “has habitually, persistently and without reasonable grounds instituted vexatious proceedings against the Mitsubishi parties and others”.
I do not rely on the decisions to which I have just referred, as Mr Cox did not, as binding authority on me to conclude that the Heads of Agreement precludes the plaintiff bringing this action against the defendants. They were cited by Mr Cox in submitting to me that some or all of them are persuasive authority for me to find in a similar way here. They do not constitute a legal estoppel against the plaintiff in bringing this action because Blue J found that they did not.
I consider that I am in a position in respect of the matters I have to decide as to the applications before me similar to the position Finn J found himself in in hearing and deciding what was “in essence a preliminary trial”. I find it hard to imagine that I do not have before me all the documents that are said to be relevant by either side to the applications I have to decide. Further, I cannot imagine that the plaintiff has not put before me every contention or submission that he could conceive as available to him. This is particularly so where he has put contentions and submissions which appear to me to have never been put before. Further still, two important witnesses were cross-examined at length about their involvement in the matter.
I consider that these considerations have made it appropriate for me to consider the evidence in the way that I have and make findings as to that evidence as I have. As in the case before Finn J, my approach to the application is somewhat different to how I may have otherwise dealt with applications for summary judgment. I am satisfied that I should act in the way that I have and will, not only for the reason that the contentions and evidence are as I have described them to be, but also because each side has submitted that I should enter summary judgment in the action for their side. Although I am not bound to enter what could amount to a final judgment for either side, I consider that I am entitled to consider doing so and, if satisfied that is appropriate to do so, enter judgment for one or other side. I consider that the whole of the circumstances, including the evidence and submissions before me, enable me to do that, should I be so inclined.
The plaintiff is entitled to judgment if I am convinced that Blue J’s decision of 20 August 2015 is such that he should be so entitled, because that was what Blue J decided.
The defendants are entitled to rely on the clear terms of the Heads of Agreement to defeat the plaintiff’s claim against them in this action, if the Heads of Agreement is a valid and binding agreement and there is no impediment to order that the plaintiff’s claim be dismissed because there is no reasonable basis for it in the face of the terms of the Heads of Agreement.
I have already determined that Blue J did not determine the issue in this case against the defendants. I have already held that the Heads of Agreement is of legal effect and binding. A question remains as to whether it binds the Superannuation Fund. Before I come to that I refer to s 119 of the 1986 Workers Act.

In his judgment dated 20 January 2014 Blue J referred to a question that had arisen as to whether the Heads of Agreement dated 27 October 1998 was void as the consent of WorkCover had not been obtained as apparently required by s 119 of the 1986 Workers Act. Justice Blue did not consider it necessary to decide that issue although he expressed a tentative view that such an argument could be successfully advanced (at para [1088]).
This issue was considered in Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93. In that case his Honour Deputy President McCouaig of the South Australian Workers’ Compensation Tribunal held that the Heads of Agreement did not offend s 119 of the 1986 Workers Act. His Honour said (at paras [111]-[115]):
S 119 does not require that every resolution of every claim by every worker must be approved by the Corporation. This is not what the section says, as it so easily could have if that had been Parliament’s intention. Rather, I think the intent of s 119 is to safeguard worker’s rights and benefits under the Act by declaring that contractual attempts to exclude, modify or restrict the operation of the Act without the consent of the Corporation will be deemed void and of no effect.
There can be no suggestion here of the worker being denied his due rights and benefits under the Act, or of anyone trying to circumvent the operation of the Act. This is a case of a worker, well aware of his rights and benefits under the Act, choosing to compromise his disputed entitlements in respect of existing claims on terms that he was pleased with at the time and thereupon, in conjunction with Mitsubishi’s solicitors, carefully ensuring that his claims were properly finalised in accordance with the Act.
…
The parties’ ability to consent to an acceptance or, as here, rejection of a claim for compensation is fundamentally within the ambit of the Act. One of the stated objects of the Act is “to reduce litigation and adversarial contests to the greatest possible extent” and there is a heavy focus in the current scheme on conciliated outcomes. To circumvent, or attempt to circumvent, the operation of the Act is quite another thing.
I find that neither the settlement reached by the parties nor the Agreement recording that settlement purported to exclude, modify or restrict the operation of the Act so as to give rise to any application of s 119 of the Act.
I was also referred to the decision of the Full Court of the Supreme Court of South Australia in the Workers Rehabilitation & Compensation Corporation v JR Engineering Services Pty Ltd & Ors (1995) 180 LSJS 276. In that case, Debelle J examined the operation of s 119(1) at p 290. He said that:
The operation of this provision is confined to those parts of an agreement which purport to exclude, modify or restrict the operation of the Act. If any agreement contains a clause which falls within that description, the agreement is not wholly void but void only to the extent that it does not purport to exclude, modify or restrict the operation of the Act.
In my view Deputy President McCouaig and Debelle J were correct in what they said as to the operation of s 119 of the 1986 Workers Act. In my view the provision in the executed Heads of Agreement that the plaintiff be paid an ex gratia payment of about $125,000 did not, in its terms, attempt to exclude, modify or restrict the operation of the Act. Further, it is my view that that paragraph and all the other paragraphs in the Heads of Agreement were consistent with the focus of the Act “to reduce litigation and adversarial contests to the greatest possible extent”. Even if I had come to the conclusion that that paragraph offended s 119 of the 1986 Workers Act, that would not make the agreement “wholly void but void only to the extent that it does not purport to exclude, modify or restrict the operation of the Act”, as Debelle J said in the case cited above. The provisions of the executed Heads of Agreement that relate to superannuation and the plaintiff’s agreement not to institute any legal proceedings in respect of superannuation would not exclude, modify or restrict the operation of the 1986 Workers Act. They could, I conclude, be severed from the Heads of Agreement, and be binding on the plaintiff and his dependants.
I come to the question as to whether the Superannuation Fund can rely on the clear terms of the Heads of Agreement as an absolute answer to the plaintiff’s claim.
There is no doubt that the defendants before me were not at or represented at the mediation in October 1998 and are not parties to the Heads of Agreement dated 27 October 1998. I have found earlier in this judgment that not only did the parties to the mediation and to the Heads of Agreement agree to the mediation and enter into it with the clear wish or expectation that any settlement that was effected would be in full and final settlement of all claims the plaintiff had including superannuation, I have also found that the plaintiff intended that the Superannuation Fund be bound by the terms of the agreement. I have found that this was his wish and this was his understanding of the effect of the agreement reached at the mediation. I have also found that the plaintiff believed Mr Breugem was there representing the Superannuation Fund.
What was said and done at the mediation when the terms and conditions of any Heads of Agreement were being discussed would be inadmissible for the purpose of construing the written agreement. However, evidence “of the surrounding circumstances would be admissible …” (Exhibit P7, the plaintiff’s 4^th affidavit sworn on 4 November 2015, para 3.1) and is admissible on the question I am now considering, that is, whether the Superannuation Fund can rely on the Heads of Agreement. I have found that the “surrounding circumstances” are consistent with the natural and ordinary meaning of the actual words of the Heads of Agreement executed by the parties on 27 October 1998. It is not necessary to look at the surrounding circumstances to “construe” the words of the Heads of Agreement. The words are plain and clear in their natural and ordinary meaning and I have found that both parties to the agreement understood the words to mean that the plaintiff agreed to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages; that that included payment in full and final settlement of any superannuation payable by the MMAL Staff Superannuation Fund; that the sum of $200,000 to be paid to the plaintiff included a sum to be paid from the Superannuation Fund; and that in consideration of these matters the plaintiff agreed not to institute any legal proceedings in respect of those matters.
I consider that I can and must have to regard to the surrounding circumstances in determining and resolving whether or not I should infer that the parties to the Heads of Agreement intended “to constitute a trust of a promise for” the Superannuation Fund to use the words of Deane J in Trident.[5] To put that another way: whether I should, in the circumstances, infer a joint intention or understanding by the plaintiff and Mitsubishi Motors to create a trust to the benefit, or burden, of the Superannuation Fund. Or, as the defendants before me put it: whether I should infer that it was clearly intended by the parties to the Heads of Agreement that it both benefit and burden the Superannuation Fund and thereby create a trust in its favour in respect of the promise not to institute any legal proceedings against the Trustee of the Superannuation Fund.
[5] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.
My findings of fact lead me to the conclusion that the parties to the executed Heads of Agreement, including the plaintiff, clearly intended that the Superannuation Fund had both the benefit and the burden of the terms of the Heads of Agreement. I find that they clearly intended to create a trust in favour of the Superannuation Fund in respect of the plaintiff’s promise not to institute any legal proceedings against the Fund by virtue of the Heads of Agreement. I consider that my findings as to the plaintiff’s intention, his understanding, and his belief that the Superannuation Fund was a part of the mediation which negotiated and produced the executed Heads of Agreement could lead me to no conclusion other than the parties to the Heads of Agreement intended to create a trust to the benefit of the Superannuation Fund.
This is a conclusion which is not only consistent with all the circumstances leading up the mediation on 26 and 27 October 1998, but is not inconsistent with the position that the parties to the executed Heads of Agreement took after 28 October 1998. I have no doubt that because of the circumstances leading up to the mediation, the mediation itself (insofar as I can make findings regarding it), and the circumstances subsequent to it, the parties to the executed Heads of Agreement intended to create a trust to the benefit of the Superannuation Fund. As I have said a number of times before in this judgment, I have no doubt that the plaintiff intended that the Superannuation Fund be bound by the terms of the executed Heads of Agreement. I have found that the plaintiff understood clearly and unambiguously that his covenant not to sue contained in paragraphs 4 and 4.1 of the Heads of Agreement encompassed the Superannuation Fund and that that was his intention when he signed the executed Heads of Agreement.
I am satisfied and find that the plaintiff had an intention to create a trust when he signed the executed Heads of Agreement, although he would not have considered it in those terms. I am satisfied and find that that intention of the plaintiff is established on the clear construction of the Heads of Agreement and/or by inference arising out of the circumstances in which the Heads of Agreement was entered.
It is not necessary, at law, that the parties to an agreement know that they are creating a trust, and the beneficiary of the trust need not know that a trust has been created, in order for the creation of a trust to be effective. Whether Mr Breugem was aware that a trust had been created in favour of the Superannuation Fund is not a matter upon which I can make a finding. But I am satisfied, beyond doubt, that a trust was created by the parties to the Heads of Agreement in favour and to the detriment of the Superannuation Fund. I so find.
I have no doubt of this notwithstanding some correspondence subsequent to the Heads of Agreement being executed on 27 October 1998 to the effect that the Trustees of the Superannuation Fund might, and had, further considered the plaintiff’s insistence that he was entitled to a TPD benefit.
However, this was written in the context of Mr Altorfer and Mr Smelt not knowing the precise terms of the Heads of Agreement. They were also written in the context of the plaintiff writing, time and time again, to the Superannuation Fund or its officers insisting that he was entitled to a TPD benefit. It may have been that some of those who responded to that correspondence thought that they were bound to have the Trustees of the Superannuation Fund consider the plaintiff’s requests. At other times, the plaintiff was advised that he was bound by the Heads of Agreement. On other occasions the plaintiff was advised that the Trustee had reconsidered his further request for a TPD benefit and found, on the evidence presented, that he was not entitled to one.
I can understand the position of some of the people who received correspondence from the plaintiff, when bombarded with faxes, letters and telephone calls from the plaintiff claiming that he was entitled to a TPD benefit, particularly when the expressed basis for this entitlement changed and evolved over time.
However, I am convinced, and I find, that no officer of the Superannuation Fund ever wrote anything or said anything to the plaintiff which could be regarded as the Trustee of the Superannuation Fund renouncing its rights under the executed Heads of Agreement, or was such as to found an estoppel against the Trustee for the future. I expressly find that at no time did the Trustee or any of the officers of the Superannuation Fund write or say anything to the plaintiff that did, or could have conceivably, indicated to him that the Trustee was renouncing rights it had under the executed Heads of Agreement.
I conclude that properly construed, it was clearly contemplated by the terms of the Heads of Agreement that the Trustee of the Superannuation Fund was to be the beneficiary of the promises made by the plaintiff in the Heads of Agreement, including the covenant not to institute any legal proceedings about, among other things, the plaintiff’s claimed superannuation benefits.
I have earlier found that Mr Altorfer and Mr Smelt were unaware, at least in the period immediately after October 1998, of the precise terms of the Heads of Agreement. I agree with Finn J when he said that the Trustee continued to consider the plaintiff’s claim for a TPD after October 1998, and properly did so given Mr Smelt’s assurance at the time of the Mediation Agreement that he would raise the TPD claim with Colonial.
The Trustee or those acting for it and Mitsubishi Motors or those acting for it, from time to time from immediately after October 1998 reminded the plaintiff that the executed Heads of Agreement prevented him from making any further claim against the Superannuation Fund. That did not stop the plaintiff from continuing to maintain that he was entitled to a TPD benefit from the Superannuation Fund. He maintained that on the basis that he applied for one at the mediation, when his employment with Mitsubishi Motors ceased, and that his application was denied. He claimed that the Trustee should have granted his application for a TPD benefit that he applied for at the mediation.
The plaintiff continues to maintain that he is entitled to a TPD benefit in the action commenced in this Court, although, as I have noted, the Statement of Claim he was granted permission to institute in this Court does not appear to allege a breach of trust in 1998. In the circumstances it may have been difficult to amend this Statement of Claim had the matter proceeded.
I have concluded, on the applications before me, that I should grant the defendants’ application for summary judgment against the plaintiff.
I have concluded that the plaintiff’s application for summary judgment against the defendants should be dismissed. It was principally based on the plaintiff’s submission that I was bound to grant it because Blue J had already decided the issue in his favour in his judgment of 20 August 2015. The plaintiff submitted further that the executed Heads of Agreement was a fraud, it was unconscionable, and that he was not bound by it and therefore, because of Blue J’s decision, he should have summary judgment in his favour. That is, as I understood it, that he should have judgment, not merely for an order that the Trustee of the Superannuation Fund be directed to consider the question of eligibility for a TPD benefit according to law, but for an order of this Court that the Trustee pay him a TPD benefit pursuant to the Trust Deed.
For the reasons I have expressed in this judgment, I have concluded that the orders sought by the plaintiff should be refused.
I have concluded that the defendants have made out their case for a summary judgment against the plaintiff and that I should allow their application.
I have concluded that the plaintiff has failed to make out his case for summary judgment in his favour against the defendants.
My orders are:
1The plaintiff’s claim against each defendant is dismissed.
2The plaintiff’s claim for summary judgment against both defendants is dismissed.
I shall hear the parties as to costs.
I indicate that I shall receive as Exhibits P15, P17 and P18, each of which was marked for identification during the hearing before me.