Kowalski v Mitsubishi Motors Australia Ltd - [2005] SASC 261

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD
Judgment of The Honourable Justice Anderson
15 July 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
Dispute between parties as to contents of appeal books - appellant seeking order that respondent prepare five copies of the appeal books and other orders - appellant also seeking directions as to the content of the appeal books - Held: application that the respondent prepare appeal books refused - application for directions as to the content of the appeal books referred to a Master of the Supreme Court.
Supreme Court Rules 1987 R95.09, R95.11, referred to.

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD
[2005] SASC 261
Application

ANDERSON J This application is brought by Mr Kowalski, in relation to an appeal he has instituted against a judgment of another Judge of this court delivered on 19 April 2005. In that decision it was held that the plaintiff, Mitsubishi Motors Australia Ltd, had succeeded in demonstrating that the defendant, Mr Kowalski, “has persistently instituted vexatious proceedings”. His Honour made an order that:
The defendant be and is hereby prohibited from instituting further proceedings, whether civil or criminal, in a prescribed court as defined in section 39(6) Supreme Court Act 1935, against the plaintiff or any corporation related to the plaintiff or any present or former employee or agent of the plaintiff, without leave of the Court.
Mr Kowalski filed a Notice of Appeal on 28 April 2005, but has not been able to come to an agreement with the respondent about the materials to be included in the appeal books. On 14 June 2005 Mr Kowalski filed a Notice for Specific Directions, which is the application before me. In that application Mr Kowalski sought a number of orders, including an extension of time to both lodge the appeal books and to set down the appeal pursuant to R95.11(1)(a) of the Supreme Court Rules 1987. At the hearing before me on 24 June 2005 I granted Mr Kowalski an interim extension of time in which to lodge the appeal books and set down the appeal until Friday 29 July 2005. I will now further extend that order to Friday 12 August 2005.
In relation to the other matters raised by Mr Kowalski, I indicated during argument that the application in paragraph 5, namely, that the respondent be directed to prepare detailed submissions, was a matter to be dealt with by the presiding member of the Full Court in due course. I also indicated my intention to refer the applications in paragraphs 1 and 2 for directions as to what documents should be included in the appeal books pursuant to R95.09, to a Master of the Supreme Court. I then reserved my decision in relation to the application in paragraph 3 of his Notice for Specific Directions.
Paragraph 3 of the Notice for Specific Directions states:
That an order be made that the respondent prepares 5 copies of the appeal books, in electronic or hard copy format, on the ground that the appellant does not have the funds to prepare the appeal books, and on the ground that in the past the respondent has agreed to prepared (sic) 21 volumes of the appellant’s appeal books, at no cost to the appellant, in respect to the appellant’s appeal to the Full Bench of the Workers Compensation Tribunal in action No. 4163 of 1998E, therefore, the respondent has set a precedent to prepare appeal books, for the appellant, at no cost to the appellant.
In support of this part of his application, Mr Kowalski has filed an affidavit sworn on 24 June 2005 in which he states that:
I am not employed, I do not have any bank accounts and I do not have any paid source of income, therefore, I do not have any available funds that I can use to pay for the preparation of 5 copies of my appeal books.
In addition, in argument Mr Kowalski stated that:
I’ve asked my wife for money, she refused; she wants me to stop litigating. Without access from any money from a trust, any trust, I can’t force a trustee to part with any money, I’ve got no means of preparing the books. It’s a large volume of documents. This is why originally I tried to reduce the amount to a minimum, and I haven’t got the money to go and pay to have five copies of the appeal books prepared. What I know is that in [another] case there was an order made that [a party] was allowed to use the court’s resources and photocopy at no cost…
The respondent, however, does not accept that the appellant has no funds. In his affidavit sworn on 20 June 2005 Mr Bonig, for the respondent, exhibited the decision of Master Norman dated 28 November 2003. In that decision Master Norman in the District Court states, at [16], [19]-[20] and [26] that:
The evidence before the court on the examination summons was to the effect that in or about October or November 1998 the plaintiff [Mr Kowalski] had received a sum of money from Mitsubishi, consequent upon a settlement of his action against that company. This sum was made up of two components, namely a sum of $135,000, which was paid by way of bank cheque, and a further sum of approximately $63,000, which was a rollover of some superannuation monies. The plaintiff was asked what happened to the $135,000, and he said that he had given it to his wife…
Mrs Kowalski was asked various questions in relation to what she did with the cheque for $135,000. She indicated that she had put this into a Family Trust Account. This was a discretionary trust. It was clear from her evidence that she had the ability to decide what transactions within the account should be made. When asked what arrangements the Trust had entered into with the plaintiff as to the basis upon which the money was to be placed into the account, she said that there were “no arrangements”…
Mrs Kowalski’s evidence was that whenever the plaintiff required any money, the fund would give him that money, and that he was a beneficiary of the Family Trust…
After hearing submissions from Mr Bonig, my findings relating to this evidence and documentation were that the plaintiff had placed the money in the trust so that his creditors could not access the funds, and for the same reason he had transferred his half share in the house property to his wife.
In submissions before me Mr Bonig argued that the context of these earlier proceedings should be considered. He pointed out that this appeal involves a decision that Mr Kowalski is a vexatious litigant, and that the “voluminous litigations instituted by Mr Kowalski” have put the respondent to considerable expense. In this context he argued that it would be inequitable for the respondent to in effect be ordered to fund the further litigation against Mitsubishi which would only compound the vexatious nature of Mr Kowalski’s conduct.
Mr Bonig also submitted that the normal rule as appears in Rule 95 of the Supreme Court Rules is that the party that has the carriage of the appeal shall prepare and lodge the appeal books. Mr Bonig stated that:
Mr Kowalski must have some access to resources, as your Honour will see if your Honour only has a look at the court file in relation to this action. You will see that there has been an incredible number of documents prepared by Mr Kowalski and filed in the action.
I agree that the file indicates that Mr Kowalski has generated a large volume of documents in a relatively short period.
In relation to Mr Kowalski’s assertion that he wanted to reduce the amount of material included in the appeal books, Mr Bonig submitted that if this were the case, the proper course to have adopted would have been to accept the rulings of the Registry in relation to the index to appeal books.
The gist of the dispute between the appellant and the respondent in relation to the contents appeal books seems to be the desire of the appellant to include a large amount of material which he had sought to tender before the Judge at first instance, but which His Honour refused to admit in to evidence. Ground 2 of the Notice of Appeal states that “The learned Justice erred in law in that he refused to allow the appellant to tender [followed by a list of various documents]”. In addition, Mr Kowalski has rejected the respondent’s argument that the exhibits actually tendered before the Judge should be included. In a letter dated 23 May 2005 Mr Kowalski asserts that “most [of] the exhibits before Justice Bleby are not relevant to my appeal against his corrupt decision.”
On 3 June 2005 the Supreme Court Appeals Clerk sent a letter to Mr Kowalski indicating that his proposed index was not compliant with the Rules, and advising that he agreed with the comments made by Mr Bonig in an attached letter dated 23 May 2005.
Finally, Mr Bonig submitted that Mr Kowalski had failed to satisfy a costs order previously made against him in relation to the preparation of appeal books by Mitsubishi, and that in those circumstances, if the respondent were ordered to prepare the books in this appeal, and Mr Kowalski were to lose, it is highly unlikely that the respondent would be able to recover its costs.
Mr Kowalski has pointed to his financial circumstances, and the fact that the respondent has previously assisted him with the preparation of appeal books as support for ordering the respondent to assist him in this matter. However, in light of the nature of these proceedings, and the findings made by both Bleby J and Master Norman, it is my view that it is not appropriate to make such an order. I also decline Mr Kowalski’s oral application to have the photocopying facilities of the Supreme Court made available to him free of charge. It is my view that each of the submissions made by the respondent, and set out earlier, carries considerable weight and further, Mr Kowalski has not convinced me that his impecunious state, if genuine, is anything other than self-imposed.
The comments and findings of Master Norman, some of which are set out earlier in these reasons, demonstrate that Mr Kowalski set out to divest himself of his assets. Now that Mr Kowalski has appealed, he must bear the costs associated with that appeal.
Orders
1The appellant’s application in paragraph 3 of the Notice for Specific Directions dated 14 June 2005, that an order be made that the respondent prepare five copies of the appeal books, is refused.
2The application in paragraph 5 of the Notice for Specific Directions dated 14 June 2005, that the court directs the respondent to prepare detailed submissions, is refused.
3The applications in paragraphs 1 and 2 of the Notice for Specific Directions dated 14 June 2005, for general directions and that the court give directions as to the documents to be included in the appeal books, is referred to a Master of the Supreme Court.
4The extension of time granted by me on 24 June 2005 be extended to Friday 12 August 2005.