Kowalski v Mitsubishi Motors Australia Ltd - [2005] SASC 433

Supreme Court of South Australia
(Full Court)
KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Duggan and The Honourable Justice Anderson)
22 November 2005
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN LEGAL PROCEEDINGS
The appellant appealed against an order made pursuant to s 39 of the Supreme Court Act prohibiting him from instituting further proceedings in any prescribed court without leave - the order followed a finding that he had "persistently instituted vexatious proceedings" - held that the foundation for the order had clearly been made out and there were no grounds to interfere - appeal dismissed.
Supreme Court Act 1935 (SA) s 39; Workers Rehabilitation and Compensation Act 1986 (SA) s 42 and s 119, referred to.
Mitsubishi Motors Australia Ltd v Kowalski (unreported, 24 September 2004, judgment no. [2004] SASC 302; Attorney-General v Wentworth (1988) 14 NSWLR 481; Attorney-General for the State of Victoria v Weston [2004] VCS 312; Brogden v Attorney-General [2001] NZCA 208; Mitsubishi v Kowalski [2001] SAWCT 93, considered.

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD
[2005] SASC 433
Full Court: Perry ACJ, Duggan and Anderson JJ

PERRY ACJ: This is an appeal from an order of a judge of this Court that the appellant be prohibited from instituting further proceedings, whether civil or criminal, in a prescribed court as defined in s 39(6) of the Supreme Court Act 1935 (“the Act”) against the respondent Mitsubishi Motors Australia Ltd (“Mitsubishi”) “or any corporation related to … [Mitsubishi] … or any former or present employee or agent of … [Mitsubishi] … without leave of the court”.
The order followed a finding by the trial judge that the appellant had “persistently instituted vexatious proceedings” within the meaning of s 39(1) of the Act.
In the order under appeal, the trial judge also stayed certain proceedings instituted by the appellant which were in train in the Workers Compensation Tribunal (“the Tribunal”).
At one time the appellant was employed by Mitsubishi. He alleges that during the course of or arising out of his employment, he suffered a number of injuries. They include an eye injury in December 1986; a right middle finger injury in May 1988; a back injury in May 1989; emotional distress in August 1991; a heart attack in December 1997; and bi-lateral carpal tunnel syndrome in December 2003.
The last two alleged injuries occurred after the appellant had ceased working for Mitsubishi.
From about 1989 onwards, in a large number of proceedings mainly in the Tribunal, the appellant sought compensation and other forms of relief with respect to the alleged injuries.
Many of the proceedings were outstanding as at October 1998, when the appellant and Mitsubishi entered into a formal mediation conducted by a Queen’s Counsel. As a result of the mediation, heads of agreement (“the settlement agreement”) were drawn up and signed by both parties which, on Mitsubishi’s case, put an end to all outstanding claims by the appellant against Mitsubishi and precluded any further claims being made against them.
Notwithstanding the execution of the settlement agreement, the appellant continued to issue further proceedings, renewing his claims for compensation.
By an inter partes summons issued in this Court on 18 March 2004, Mitsubishi sought a declaration that the appellant had persistently instituted vexatious proceedings within the meaning of s 39 of the Act, and sought an order substantially in terms of the order now under appeal.
At the trial, Mitsubishi put forward a purely documentary case. It relied on affidavits to which numerous exhibits were appended, and a volume of some 52 decisions and judgments of review officers, of the Tribunal, the District Court, the Supreme Court, the Federal Court of Australia and the Australian Industrial Relations Commission.
The appellant tendered a number of affidavits and other documents. However, the trial judge rejected the tender by the appellant of a bundle of documents, which he held to be irrelevant.
The trial judge delivered lengthy reasons for judgment. Within the reasons appears a table of some 45 proceedings involving the appellant and Mitsubishi in various courts and tribunals.
The trial judge considered each of the 45 proceedings in turn. He found that some 30 of them had been instituted vexatiously by the appellant, in the sense that the claims pursued in the proceedings by the appellant were groundless.
The conclusion reached by the trial judge was expressed by him in the following terms:
[294]The plaintiff has succeeded in demonstrating that the defendant has persistently instituted vexatious proceedings. There is no indication that the defendant has ceased doing so. Indeed, the fact that he has continued to do so since these proceedings were instituted, and the manner in which he conducted his case in this Court, would suggest that he has every intention of continuing to institute such proceedings until someone recognises the validity of what now must be described as hopeless claims.
In his notice of appeal, the appellant complains that the trial judge erred in refusing the tender by the appellant of various documents; challenges the findings made by the trial judge with respect to certain of the proceedings in question; asserts that the trial judge was biased; and challenges the conclusion that he has persistently instituted vexatious proceedings.
The appellant represented himself both at the trial and on the hearing of the appeal.
His notice of appeal, outline of argument, and oral presentation at the hearing of the appeal all displayed a mixture of aggression, incoherence and tenacity. His presentation generally would never have been tolerated from legal counsel, and bordered on contempt of court.
Nonetheless, I have looked past those matters and attempted to address the merits of his arguments.
I will first deal with two discrete preliminary matters before considering the specific grounds of appeal.
A Question of Construction
Before the trial commenced, a Master referred a question to the Full Court for its determination, being a question as to the construction of s 39 of the Act.
At the time that the respondent’s application was taken out, s 39 relevantly provided as follows:
39(1)   If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)   an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without leave of the court;
(b)   an order staying proceedings already instituted by that person.
…
(6)A reference in this section to proceedings extends to both civil and criminal proceedings whether instituted in the court or some other court of the State.
The question referred to the Full Court was “whether or not the Workers Compensation Tribunal was a court for the purposes of s 39 of the Supreme Court Act.” The Full Court answered the question affirmatively.[1]
[1] See judgment of the Full Court (Duggan, Besanko and Anderson JJ) Mitsubishi Motors Australia Ltd v Kowalski (unreported, 24 September 2004, judgment No [2004] SASC 302).
An amendment to the section was effected by the Statutes Amendments (Courts) Act 2004. The amendment took effect as from 1 September 2004. The effect of the amendment was to expressly define the courts in which proceedings might be found to be vexatious for the purpose of the section. The definition expressly included the Workers Compensation Tribunal.
The decision of the Full Court on the question referred to it, was handed down after the amendment came into effect, but was based on the provisions of s 39 as they stood before the amendment.
It follows that both before and after the amendment, the “proceedings” referred to in subsection (1) of s 39 include proceedings in the Tribunal whenever those proceedings might have been instituted.
The trial judge expressly so found, and was clearly right in reaching that conclusion.
The appellant re-argued the matter before this Court. His arguments were misconceived and should be rejected. The conclusion reached by the trial judge should be affirmed.
The Validity of the Settlement Agreement
I have already referred to the settlement agreement executed by the appellant and the respondent following the mediation which took place in 1998.
The agreement is dated 27 October 1998. Pursuant to the agreement, the appellant agreed to accept a payment by the respondent of $200,000 in full and final settlement of any entitlements to superannuation, sick leave, compensation and damages arising out of or in the course of his employment by the respondent. The agreement expressly provided that of the amount of $200,000, $10,000 was paid in consideration of the appellant “foregoing any claims or future claims in any way arising from his employment” by the respondent.
Of the 45 proceedings considered by the trial judge, 24 were proceedings instituted after the agreement was entered into.
In the course of proceedings instituted by him after the settlement agreement was entered into, at the trial, and on the hearing of the appeal, the appellant has consistently argued that the settlement agreement was invalid, arguing, inter alia, that it breached certain provisions of the Workers Rehabilitation and Compensation Act 1986 (“the Compensation Act”). He referred in particular to s 119 (which prohibits contracting out of the Act) and s 42 (which deals with redemption of a liability to pay compensation).
He argued further that Mitsubishi had not acted in good faith in its conduct of the mediation and in its entry into the settlement agreement.
In all of the proceedings in which the appellant has raised these argument, they have been rejected.
In the course of his reasons for judgment,[2] the trial judge referred with approval to findings made by McCouaig DP that the settlement agreement did not purport to “exclude, modify or restrict the operation of the Compensation Act within the meaning of s 119 … [and] … did not purport to effect, a redemption of Mitsubishi’s asserted liabilities in respect of weekly payments”[3] within the meaning of s 42 of the Compensation Act. He also accepted the finding by McCouaig DP that there was no evidence to support the suggestion that Mitsubishi had failed to act in good faith in its dealings with the appellant.
[2] See par [176]-[179].
[3] Generally, see the trial judge’s findings as to decision No 25 at par [171]-[180].
Insofar as the appellant attempted to repeat on the hearing of the appeal the arguments which he had previously advanced on this issue, I would reject them.
The appellant further contended that insofar as it had been held by the Tribunal that the settlement did not effect a redemption of Mitsubishi’s liabilities in respect of weekly payments, that liability was still in existence and could be made the subject of further proceedings by the appellant.
But the finding that the settlement did not effect a redemption of Mitsubishi’s liabilities in respect of weekly payments gives no buoyancy to the appellant’s assertion that Mitsubishi’s liabilities for weekly payments still exist. I agree with the comments made by the trial judge:
[283]The defendant’s argument is misconceived. It does not follow from the fact that there has been no redemption under s 42 that there remains a liability on the part of the plaintiff to redeem. The heads of agreement recorded the plaintiff’s denial of any liability to the defendant for weekly payments and agreed, for consideration expressed in the agreement, that the defendant’s claim for weekly payments should be dismissed, as it was. The defendant’s subsequent claims for redemption have been dismissed by the Tribunal and cannot now be resurrected. It would appear that the dismissal was entirely justified.
I turn now to the grounds of appeal
Ground 1
In this ground, the appellant complains that the trial judge “… erred in law and in fact when he found in par 294 of his decision that ‘[t]he plaintiff has succeeded in demonstrating that the defendant has persistently instituted vexatious proceedings …’”.
It is clear from the extensive reasons given by the trial judge that he gave individual and detailed consideration to the circumstances of the 45 decisions to which he was referred. No useful purpose would be served by repeating that exercise in the course of these reasons, or by repeating the conclusion which the trial judge reached with respect to each of the decisions.
It is sufficient to say that the appellant has failed to identify any reason to interfere with the conclusions reached by the trial judge with respect to each of the decisions.
Indeed, in his argument advanced on the hearing of the appeal, the appellant did not attempt to analyse or attack the particular findings made by the trial judge with respect to each of the 45 decisions and the proceedings upon which they were based. Rather, he relied upon more general considerations, and mounted a wide-ranging attack on the process followed by the trial judge. The main elements in that attack concerned the question of the validity of the settlement agreement, and the meaning of “court” in the Act, both of which issues I have already dealt with.
As to what constituted “persistently” instituting vexatious proceedings, the trial judge accepted dicta contained in three authorities, namely Attorney-General v Wentworth;[4] Attorney-General for the State of Victoria v Weston;[5] and the judgment of the New Zealand Court of Appeal in Brogden v Attorney-General.[6] From the latter authority, he quoted[7] with approval the following passage:[8]
What constitutes institution of such proceedings “persistently” will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.
[4] (1988) 14 NSWLR 481 per Roden J at 492.
[5] [2004] VSC 314 per Whelan J at [18].
[6] [2001] NZCA 208; [2001] NZAR 809.
[7] At [277].
[8] Ibid at [21].
The trial judge went on to observe:
[278]I am happy to adopt the approach taken in these cases. There has been a large number of cases instituted by the defendant against the plaintiff vexatiously. I have identified 30 such proceedings, 27 of which have been instituted in the period beginning about 12 months after the settlement agreement, and most of which have sought, in one way or another, to undo it. However, the defendant has also continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many occasions, being grounds on which he also resisted the making of an order in these proceedings. The defendant has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him. I have no hesitation in deciding that the proceedings which have been identified as being vexatious have been instituted persistently and that the plaintiff is entitled to the orders it seeks.
The appellant has not identified any error in the approach taken by the trial judge which led him to reach that conclusion.
Ground 2
In this ground the appellant complains that the trial judge erred in refusing to allow him to tender various documents, which he itemises in the notice of appeal. The list of the documents is too long conveniently to set out in these reasons.
The Court allowed the appellant to hand up on the hearing of the appeal, a supplementary appeal book containing a copy of what appears to be most of the documents which relate to this ground of appeal.
In the course of his reasons for decision, the trial judge said[9] that he rejected the tender of the documents on the basis that they were not relevant to the issues for determination in the proceedings.
[9] At [9].
I have perused each of the documents in question. In the main, they are made up of correspondence between WorkCover Corporation of South Australia (“WorkCover”) and solicitors for the parties; various documents generated by Mitsubishi or WorkCover with respect to the appellant’s claims for compensation; correspondence between the appellant and Mitsubishi; correspondence with Members of Parliament; and transcript and other documents to do with some of the Tribunal proceedings.
I agree with the trial judge’s ruling that the documents were not relevant and were not admissible.
Looking at the matter broadly, the trial judge was, if anything, unduly accommodating with respect to the documents which in fact he received in evidence from the appellant. Much of the material was, at best, on the borderline of relevance, and much of it was tendered in aid of the appellant’s persistent attempts to re-litigate issues which had been concluded against him.
Ground 3
This reads:
The learned justice erred in law and in fact in finding in par’s [sic] 280 and 281 of his decision that the respondent’s action in District Court action No 2760 of 1990 was brought pursuant to section 54(1)(b) of the Workers Rehabilitation and Compensation Act 1986.
The trial judge did not find that the action was brought pursuant to s 54(1)(b) of the Compensation Act.
The District Court proceedings were brought by the appellant against Mitsubishi. In the proceedings, he claimed damages with respect to an injury which he alleged he had suffered to his back, when he slipped and fell in the course of his employment by the defendant on 9 May 1989.
At the trial now in question, the appellant claimed that certain findings of Judge Lee in the District Court made in the course of the District Court proceedings were made without jurisdiction and therefore of no effect. More particularly, he claimed that the findings did not constitute an estoppel with respect to subsequent claims made concerning his back injury.
The trial judge correctly held that at the time s 54 of the Compensation Act did not exclude an employer’s liability at common law for non-economic loss or solatium, although later amendments to the Act did preclude such claims. The proceedings, and the findings of Judge Lee, were therefore within jurisdiction, and could not now be challenged.
In reaching his conclusion to that effect, the trial judge was clearly right.
Ground 4
The appellant complains that:
The learned Justice erred in law and in fact in … [various paragraphs] .. of his decision on the ground that clause 2.2 of the Heads of Agreement .. clearly states that “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”, therefore, he failed to follow the ‘Parole Evidence Rule’.

It is very difficult to understand what the appellant means in this ground of appeal, or to relate it to the paragraphs of the trial judge’s reasons referred to.
In those paragraphs, the trial judge upheld the validity of the settlement agreement; accepted the argument that by virtue of s 114 of the Compensation Act insofar as the settlement of agreement included provision for an ex gratia payment that did not affect any liability for compensation, but accepted that whatever liability attached to Mitsubishi at the time the settlement agreement was entered into, was satisfied and extinguished by the payment of $10,000 identified in clause 2.3 of the settlement agreement.
The appellant has not identified any reason to question those findings.
This ground of appeal is not made out.
Ground 5
In this ground, the appellant repeats his criticism of the trial judge insofar as he did not accept that there was an ongoing liability for weekly payments, as the settlement agreement did not redeem any such liability.
I have already dealt with this aspect of the matter adversely to the appellant’s contentions.
Ground 6
This ground reads:
6 The learned Justice erred in law in failing to follow the legal doctrine of res judicata in respect to the finding of fact that was made by Their Honours President Judge Jennings, DPJ Parsons and DPJ Gilchrist in par’s [sic] 15 and 18 of the WCT decision in Mitsubishi v Kowalski [2001] SAWCT 93 that “… the tribunal’s jurisdiction is limited to the [sic] setting aside the consent order. It has no jurisdiction to make any orders or declarations whatsoever in relation to the Heads of Agreement … the terms of the Agreement, will be matters for parties to agitate elsewhere…”
After quoting that part of the reasons of the Full Bench of the Tribunal, the trial judge observed:
[291]The defendant has seized upon that statement in these proceedings and proceedings before the Tribunal to argue that the Tribunal had no jurisdiction to make orders or decisions based on or influenced by the heads of agreement. What the Full Bench of the Tribunal said was that it could not make any formal declaration as was then being claimed by the defendant to the effect that certain parts of the agreement were void and of no effect. What the Tribunal said did not mean that the Tribunal could ignore the agreement and determine the defendant’s claim and rights to compensation as if the agreement did not exist. The existence and validity of the agreement was crucial to the success or otherwise of the defendant’s various claims. The Tribunal found that the agreement was valid and binding and that it did not offend s 119 Compensation Act. It had to make findings as to the validity of the agreement. That was in order to determine the defendant’s application to set aside the consent orders. The Tribunal has never purported to make orders or declarations concerning the validity of any portion of the heads of agreement. The findings that it has made as to their validity had nevertheless been binding had been relevant to the determination of the defendant’s many claims brought before the Tribunal.
There is no error in those findings made by the trial judge.
This ground is not made out.
Ground 7(a)
In his notice of appeal, the appellant includes two ground 7s. For convenience I have re-lettered the first of them 7(a).
This ground relates to the argument by the appellant that s 39 of the Act does not extend to proceedings of the Tribunal. I have already dealt with that argument.
Grounds 7(b), 8 and 9
It is convenient to deal with these grounds together. They read:
7[b] The learned Justice was bias (sic) at law.
8 The learned Justice erred in law on the ground that he deliberately and consciously perverted the course of justice during the trial.
9 The learned Justice erred in law by accepting the respondent’s statements from the Bar Table as evidence.
The suggestion that the trial judge was biased or that he in some way perverted the course of justice, cannot conceivably be substantiated.
On the contrary, it is obvious from the course of the trial that the trial judge exhibited a good deal of restraint, and patiently heard out arguments advanced by the appellant in terms which were aggressively objectionable and in the main irrelevant.
The trial judge made every allowance for the fact that the appellant appeared in person. Many judges would not have exercised the tolerance displayed by the trial judge in dealing with the manner in which the appellant conducted his defence of the proceedings.
In the course of his reasons for decision, the trial judge observed:
[35]When he was present the defendant’s conduct during the hearing demonstrated little respect on his part for the Court. He was at times rude and insulting both to counsel and to the Court, such as would have warranted proceedings for contempt. His attacks on the judicial system of this State were persistent and widespread. However, I considered that the interests of justice would, in this instance, best be served by ignoring such behaviour save when it became necessary to deal with unwarranted interruptions and speaking over both counsel and myself and when the defendant refused to listen to or observe any directions I endeavoured to give. Whilst such behaviour cannot go unnoticed, I have not allowed it to influence my judgment in the consideration either of the plaintiff’s case or the matters raised in opposition by the defendant. I have done my best to record the defendant’s submissions as I understand them, although they were at times disjointed, misconceived and confused. I will nevertheless address those points in due course.
As for ground 9, there is simply no evidence to substantiate the suggestion that the trial judge in any way accepted statements made by Mitsubishi’s counsel as evidence.
Conclusion
In my view, none of the grounds of appeal are made out.
On the contrary, the manner in which the appellant has pursued the appeal and presented his arguments fully supports the propriety of the order under appeal.
I would dismiss the appeal.
DUGGAN J. I agree that the appeal should be dismissed. I also agree with the reasons prepared by Perry ACJ.
ANDERSON J. I would dismiss the appeal for the reasons given by Perry ACJ.