Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd
[2018] SASCFC 44
•1 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION FUND PTY LTD & ANOR
[2018] SASCFC 44
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
1 June 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - PARTIES - RIGHTS AND LIABILITIES OF THIRD PARTIES
The appellant was employed by Mitsubishi Motors Australia Limited (“MMAL”) between 1964 and 1994. Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (the first respondent) was the trustee of the Mitsubishi Motors Australia Staff Superannuation Fund (“the Fund”), of which the appellant, as an employee, was a member. In June 2006, the rights and obligations of the first respondent as trustee of the Fund passed to the second respondent.
Between December 1986 and August 1991, the appellant suffered a number of workplace injuries while working for MMAL, resulting in the appellant not returning to work. The appellant lodged a claim for compensation with MMAL and received periodic payments from the Fund for total temporary disablement.
On 26 October 1998, a settlement was reached at mediation between the appellant and MMAL. On 27 October 1998, MMAL, the appellant and the appellant’s wife executed a document entitled Heads of Agreement (“the Executed Heads of Agreement”) under which MMAL agreed to pay to the appellant $200,000 and the appellant agreed, amongst other things, not to institute legal proceedings for any entitlements he may have, including as to superannuation. The Executed Heads of Agreement provided that part of the sum to be paid to the appellant was to be paid from the Fund. The first respondent was not a party to the Executed Heads of Agreement. Payment was made to the appellant in November 1998.
In 2015, the appellant, having been declared a vexatious litigant in 2014, was granted permission to commence proceedings against the two respondents on the basis of a breach of fiduciary duty.
The respondents brought an interlocutory application seeking summary judgment against the appellant on the basis that the Executed Heads of Agreement created a trust in favour of the respondents in respect of the appellant’s promise not to institute any legal proceedings as to his entitlements. The appellant also brought an interlocutory application seeking summary judgment in his favour.
The applications were heard by the Chief Judge of the District Court. After hearing the applications over a number of days, his Honour granted the respondents’ application for summary judgment and made orders dismissing the appellant’s application and his claims against both respondents. His Honour found that the parties to the Heads of Agreement intended to create a trust in favour of the respondents so as to give them the benefit of the appellant’s promise not to institute legal proceedings against them.
The appellant appeals against the order granting summary judgment in favour of the respondents. The appellant relies on 12 grounds of appeal, variously challenging the Judge’s findings, conclusions and orders.
Held per Nicholson J (Kourakis CJ and Hinton J agreeing), dismissing the appeal:
1. In the circumstances of the lengthy history of litigation, it was appropriate for the Judge to consider whether the matter could be determined on a summary basis and to determine the matter in this way.
2. It was open to the Judge to find that it was the common intention of the parties to the Executed Heads of Agreement that the Fund was to be the beneficiary of certain of the promises made by the appellant, including the covenant not to institute any legal proceedings as to his entitlements. The Judge did not err in finding that the Executed Heads of Agreement gave rise to an express trust by MMAL as trustee to receive and hold the relevant promises on behalf of the Fund.
3. Subsection 119(1) of the Workers Rehabilitation and Compensation Act 1986 can only apply to an extent that an agreement or arrangement purports to exclude, modify or restrict the operation of the Act. The appellant’s claim against the respondents is one that is not in any way governed by the Act and, as such, s 119(1) cannot operate to restrict the respondents’ reliance on the Executed Heads of Agreement as precluding the appellant from instituting legal proceedings with respect to his entitlements.
4. None of the appellant’s grounds of appeal establish any error by the Judge.
District Court Civil Rules 2006 (SA) r 215, r 232; Return to Work Act 2014 (SA) s 191; Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Rules (SA) r 286; Workers Rehabilitation and Compensation Act 1986 (SA) s 42, s 119, referred to.
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; Petelin v Cullen (1975) 132 CLR 355, discussed.
Attorney-General v Kowalski [2015] SASC 123; Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (No 3) [2009] FCA 53; Pacific Brand Sports & Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395, considered.
KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION FUND PTY LTD & ANOR
[2018] SASCFC 44Full Court: Kourakis CJ, Nicholson and Hinton JJ
KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Nicholson J, and the brief additional reasons I now give. I adopt the terms employed by Nicholson J in his reasons.
First, the conclusion of Nicholson J that the Fund can rely on the terms of the Executed Heads of Agreement, as a beneficiary of the trust it imposes, is reinforced in this case by the circumstances which show that Mitsubishi Motors Australia Ltd (MMAL) entered into the agreement both in its own right and, in respect of the clauses touching on the Fund, as agent for the Fund. That agency is, in my view, established by the express reference to the Fund in the Executed Heads of Agreement, and by the presence of one of its officers at the negotiations. [1]
[1] New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 at 166-168, Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 at 474, 480-481 and 495.
If the Fund was a disclosed principal, both MMAL and the Fund were jointly and severally liable to pay Mr Kowalski the sum of $64,691.43, if not immediately, at least after ratification by the Fund. It may well be that MMAL contemplated that if the Fund could not, or did not, ratify the agreement and determine in accordance with the Fund Deed to make that payment, it would do so. Be that as it may, in consideration for the promise made, Mr Kowalski agreed not to make a complaint, or bring legal proceedings, with respect to any claimed superannuation entitlement. Even though the Fund did not contend that it was a party to the Executed Heads of Agreement, the apparent agency leaves no doubt as to the mutual intention of Mr Kowalski and MMAL to confer on the Fund an equitable interest over Mr Kowalski’s promise.
Secondly, on the issue of the application and effect of s 119 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act), I would emphasise the importance of Clause 5 of the Executed Heads of Agreement. Clause 5 did not purport to exclude or modify the operation of the Act in giving effect to the agreement reached. On the contrary, it contemplated the resolution of proceedings by discontinuance or consent orders. The resolution of proceedings in accordance with the dispute resolution procedures of the Act does not contravene s 119 of the Act. On the other hand, I acknowledge that the Executed Heads of Agreement could not exclude such statutory powers as the tribunals administering the Act may have to set aside or review those consent orders or to entertain other claims. The extent to which those tribunals give effect to the Executed Heads of Agreement remains a matter to be determined in accordance with the statutory powers exercised by them. Those powers, properly construed, may allow those tribunals to have regard to the Executed Heads of Agreement, but s 119 of the Act precludes the agreement, by its contractual force alone, controlling those powers. Whether or not those parts of the Executed Heads of Agreement, which may be read as purporting to preclude a review of the consent orders, or the making of future claims, are void for breaching s 119 of the Act is not a matter which arises on this appeal because, as Nicholson J explains, this matter is concerned only with those parts of the Heads of Agreement which preclude Mr Kowalski bringing any action with respect to his superannuation entitlements. Nor, for the same reasons, does any question arise in this matter as to the application of the general law principles of unjust enrichment, should Mr Kowalski choose to claim any statutory workers compensation entitlements.
NICHOLSON J.
Introduction
In Attorney-General v Kowalski,[2] Blue J found that Mr Kazimir Kowalski (the appellant) had a tenable claim against the two respondents to this appeal and granted permission to the appellant to institute proceedings in the District Court. The appellant was directed to bring before Blue J a draft statement of claim that reflected his Honour’s reasons as to the nature of the claim against the respondents that Blue J found to be tenable.[3] The appellant was required to obtain permission to bring the proceedings because, in 2014, he had been declared by Blue J to be a vexatious litigant[4] and, as a consequence, was prohibited from instituting further proceedings without first obtaining the permission of the Supreme Court pursuant to section 39 of the Supreme Court Act 1935.[5]
[2] [2015] SASC 123.
[3] [2015] SASC 123 at [267]-[268].
[4] Attorney-General v Kowalski [2014] SASC 1.
[5] Subsection 39(1)(a) is in these terms:
39—Vexatious proceedings
(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 permission of the court;
…
By summons and statement of claim, both dated 2 September 2015 and filed in the District Court, the appellant commenced proceedings against the two respondents in terms that reflected the permission granted by Blue J. At the time that the alleged factual basis underlying the appellant’s claim first arose (1991), the first respondent was the trustee of the Mitsubishi Motors Australia Staff Superannuation Fund (the Fund) of which, as an employee of Mitsubishi Motors Australia Limited (MMAL), the appellant was a member. In June 2006, pursuant to a deed of arrangement entered into by the first and second respondents, the rights and obligations of the first respondent, as trustee of the Fund, are said to have passed to the second respondent. It is to be noted that at all material times the first respondent was a wholly owned subsidiary of MMAL.
For present purposes, it is unnecessary to explore any further the relationship between the first and second respondents in this respect and there is no reason to draw any distinction between the two who have been jointly represented in these proceedings and in previous litigation. It is common ground that, if the appellant’s claim ultimately were to be established, it would be established against and met by the second respondent. In these reasons, when referring to the Fund I will do so from time to time, depending on context, as the Fund, the respondents or simply the second respondent.
The first respondent was deregistered on 31 March 2014 but reinstated by the Australian Securities and Investments Commission following an order directing reinstatement made by Blue J on 2 October 2015, in order to facilitate the conduct of this litigation.
On 7 October 2015, the second respondent filed an interlocutory application for summary judgment in its favour as defendant (FDN 6). On 8 October 2015, the appellant filed an interlocutory application for summary judgment in his favour as plaintiff (FDN 8). On 18 November 2015, an amended interlocutory application (styled “Second Interlocutory Application”) was filed by both respondents. The amendments were procedural only, essentially to take account of the reinstatement of the first respondent. The orders sought by the two respondents included:
2.That the first and second defendants be excused from the obligation to file a defence until further order.
3.That the Court grant summary judgment in favour of the first and second defendants pursuant to rule 232 of the District Court Rules 2006 (SA).
The matter came before the then Chief Judge of the District Court, Muecke DCJ. His Honour made a number of directions designed to enable both interlocutory applications to be determined including directions as to the filing of further affidavits and a direction excusing the two respondents from the obligation to file a defence until further order. The hearing of both applications before his Honour took place over a number of days. The Judge dismissed the appellant’s application, allowed the respondents’ application and provided extensive reasons for doing so.[6] His Honour made these orders.
1.The plaintiff’s claim against each defendant is dismissed.
2.The plaintiff’s claim for summary judgment against both defendants is dismissed.
[6] Kowalski v Mitsubishi Motors Aust Staff Superannuation Fund Pty Ltd & Anor [2017] SADC 57.
The appellant has appealed only against the first order that the plaintiff’s claim against each defendant is dismissed, that is, the granting of summary judgment in favour of the respondents.
The question of whether or not an order in favour of a defendant for summary judgment is interlocutory or final is a vexed one.[7] In the event that the order made in this case was interlocutory, the appellant would need permission to appeal; not so if the order was final. I find it unnecessary to enter upon this controversy. I would, if necessary, grant permission to appeal.
[7] There is a substantial body of intermediate appellate authority (but not from this Court) to the effect that an order granting or refusing summary judgment to a defendant is interlocutory. The authorities are collected and analysed by Blue J in Attorney-General v Kowalski [2015] SASC 123 at [113]-[136]. His Honour there concludes that it cannot be said that this line of authority is plainly wrong and, as such, it is in practical terms binding on a single Judge of this Court.
The appeal to this Court is by way of rehearing.[8] As such: it is one of fact and law; the Court is to have regard to the evidence that was before the court below together with such other evidence properly admitted on appeal; and the Court is to undertake a real review of the evidence, the Judge’s findings and the Judge’s reasons.[9] To the extent that a discretion, in the House v The King[10] sense, has been exercised, the Court is not entitled to substitute its own discretionary decision in the absence of error by the Judge in the exercise of that discretion.
[8] Supreme Court Civil Rules 2006, rule 286.
[9] But subject to the usual advantages enjoyed by the primary Judge and consequential constraints imposed on an appellate court in accordance with the principles summarised in Fox v Percy (2003) 214 CLR 118.
[10] (1936) 55 CLR 499.
I have undertaken a review by way of rehearing and, for the reasons that follow, I would dismiss the appeal.
Background to the litigation
A brief summary of the circumstances from which the present litigation has arisen, sufficient for present purposes,[11] is contained in the Judge’s reasons for judgment.[12]
[11] An additional summary of the factual background to the dispute and a summary of the history of the litigation between the appellant and the respondents and MMAL is contained in paragraphs [1] to [40] of the respondents’ Summary of Argument for this appeal. For convenience and to assist in understanding the overall context in which this appeal rests, I have reproduced those paragraphs [1] to [40] in an appendix to this judgment.
[12] [2017] SADC 57 at [9]-[18].
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:[13]
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.
[13] 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 his statement of claim, the appellant makes a number of factual allegations including, inter alia, allegations relating to the plaintiff’s injuries suffered during his employment with MMAL, his interactions with medical practitioners over many years and his interactions with both MMAL and the first respondent, all with a view to demonstrating an entitlement to a total and permanent disability benefit and a failure on the part of the first respondent, in breach of trust, to give proper consideration to whether or not the appellant was eligible for a total and permanent disability benefit. The appellant’s statement of claim is structured as follows.
Under the heading “Part 1: Background and uncontroversial matters”, the pleading canvasses various matters across seven separate time periods between 16 August 1991 and 6 May 2014. Under this part, the appellant recites and alleges matters relating to: his employment with MMAL; the establishment of the Fund; the terms of the trust deed including terms relating to benefits to be enjoyed by members of the Fund; the occurrence and nature of various work injuries suffered by the appellant whilst in the employment of MMAL; the appellant’s consultation with and reports written by various medical practitioners; the lodgement of various claims with MMAL and the Fund; the receipt of certain benefits; and the making of various determinations unfavourable to the appellant with respect to various of the claims made.
Under the heading “Part 2: Basis of cause of action and other material matters” the appellant asserts his reliance on seven causes of action, one relevant to each of the time periods earlier identified in the statement of claim.
For the first two time periods the appellant pleads as follows.
In 1994 [1998] the Trustee acted in breach of trust on the grounds that no consideration was given whether to exercise its discretion in circumstances in which it was required to address that question and it did not seek relevant information to properly inform itself whether the eligibility criteria was satisfied.
The appellant has set out in the pleading a series of particulars for the 1994 cause of action which particulars, in summary form, outline his pleaded case for a total permanent disability benefit as at 1994. As far as the 1998 cause of action (in identical terms) is concerned, the appellant “repeats” these particulars.
With respect to the succeeding five time periods, the appellant pleads to the following effect.[14]
In 1999 [2001, 2005, 2010, 2014] the Trustee acted in breach of trust and its exercise of discretion was vitiated on the grounds that the discretion was not exercised upon real and genuine consideration, by consideration of the wrong question, reasons for the exercise of the discretion disclosed were not sound and it did not seek relevant information to properly inform itself whether the eligibility criteria was satisfied.
No particulars are pleaded with respect to these five asserted causes of action.
[14] Slightly different wording is employed for some of these time periods.
The orders sought in the statement of claim were as follows:
1.A declaration that the trustee [of the Mitsubishi Motors Australia Staff Superannuation Fund, in effect, the first respondent] breached its fiduciary duty to the plaintiff.
2.An order that 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.
However, a document styled Heads of Agreement, purportedly[15] entered into on 27 October 1998, if applied according to its terms, would provide a complete answer to the appellant’s claim against the second respondent. It was for this reason that the respondents sought and obtained a dispensation from having to file a defence addressing the factual allegations contained in the appellant’s statement of claim pending the resolution of their summary judgment application.
[15] I say purportedly because very late in the history of this litigation, the appellant raised for the first time, in proceedings before Blue J and during the hearing before the Judge, a contention that this document, although executed by the appellant and his wife on 27 October 1998, should be characterised as non est factum. This contention is considered later in these reasons.
The document relied on by the respondents for this purpose was executed by the appellant, the appellant’s wife and MMAL. It was not executed by the Fund or anyone on its behalf. There is no direct statement, either by way of a document heading or front sheet or a definition clause, nominating the parties to the document. However, the recitals refer only to the appellant and MMAL and recital 3 records that the appellant and MMAL wish to record the terms of a settlement. It is common ground that on the proper construction of the document the appellant and MMAL (and perhaps the appellant’s wife[16]) are parties to the Heads of Agreement but that the Fund is not a party.
[16] Nothing turns on whether or not the appellant’s wife is a party.
The Heads of Agreement document relied on by the respondents is in these terms:
Heads of Agreement dated 27 October 1998
HEADS OF AGREEMENT
WHEREAS:
1. Kazimir Kowalski (“Kowalski”) of 26 Nalimba Street Hallett Cove in the State of South Australia and Mitsubishi Motors Australia Limited (MMAL) of Sherriffs Road Lonsdale in the said state have on the 26th day of October 1998 entered into a mediation.
2. Kowalski and MMAL have entered the mediation with the intent of trying to resolve all issues both current and future in dispute between them.
3. Kowalski and MMAL have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement.
THE PARTIES HAVE AGREED THAT:
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 sun 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
3.In consideration of the matters set out in paragraphs 1 and 2 above, MMAL agrees
3.1 To forgo recovery of legal costs which are owed by Kowalski and agrees not to seek repayment from Kowalski of monies previously paid by MMAL or the Superannuation Fund including the monies paid to R J Cole & Partners with respect to Action 185 of 1992 in the Industrial Court
3.2 To comply with any Court orders for discovery and or subpoenas for witnesses in relation to any action taken by Kowalski against R J Cole & Partners
3.3 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
3.4 To prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission.
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.
4.2 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
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
4.5 That any amounts payable to the Australian Taxation Office from the sum of $200,000 are to be borne by Kowalski.
5.The parties agree that payment of the sums in paragraphs 1 and 2 will be made in the following manner:
5.1 Fountain & Bönig are to make arrangements for all matters requiring personal attendance by the parties to achieve discontinuance of those proceedings to be called on and the parties shall thereupon attend and effect discontinuance of those proceedings
5.2 As to the matters which do not require personal attendance, Fountain and Bönig will prepare the necessary documentation for discontinuance or consent orders
5.3 Upon satisfaction of 5.1 above, Kowalski shall sign all documents prepared pursuant to clause 5.2 above whereupon bank cheques for the total sum of $200,000 are to be handed to Kowalski (less any taxation that must be deducted by the Superannuation Fund).
5.4 It is the intention of the parties that the terms of this agreement be given effect to as quickly as possible and within 14 days of the date of this agreement save where beyond the control of the parties because of the need to attend personally at any Court Tribunal or Commissioner.
I will refer to this document as the “Executed Heads of Agreement”. In fact there are three versions of this document that feature in the contest between the parties. Later in these reasons I will define and refer to the other two versions as the “26 October 1998 initialled in principle Heads of Agreement” and the “27 October 1998 re-engrossed in principle Heads of Agreement”.
The respondents’ reliance on the Executed Heads of Agreement was the sole basis upon which they brought their summary judgment application. This document had previously been influential in the dismissal of materially identical claims brought by the appellant against the respondents in another jurisdiction.[17] However, these earlier dismissals of the appellant’s claim occurred in circumstances which, according to the analysis of Blue J, were such as to render defences based on res judicata, issue estoppel, Anshun estoppel and abuse of process by way of re-litigating the same controversy unavailable to the respondents in this Court.[18]
[17] Kowalski v MMAL Staff Superannuation Fund Pty Ltd & AMP Superannuation Ltd (ACN 064 829 616) (No 3) [2009] FCA 53 (Finn J); appeal dismissed [2009] FCAFC 117, (2009) 178 FCR 401; special leave to appeal to the High Court refused [2010] HCASL 21; Kowalski v AMP Superannuation Ltd [2010] FCA 1170 (Mansfield J).
[18] Attorney-General v Kowalski [2015] SASC 123 (Blue J).
A primary (but by no means the only) issue that has confronted the respondents when seeking to rely on the Executed Heads of Agreement is the fact that the Fund, that is, the second respondent, is not a party to it. Only the appellant, his wife and MMAL are parties to and executed the document. Ordinarily, the doctrine of privity of contract will operate to preclude a non-party to a contract being liable pursuant to that contract or being entitled to enforce its terms. However, in this case, the respondents maintain that they are entitled to enforce the terms of the Executed Heads of Agreement on the basis of the reasoning of Deane J in the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (“Trident”).[19] It is contended that the obligation on the appellant, expressed to be in the Fund’s favour, was one contractually owed to MMAL as trustee for and on behalf of the respondents.
[19] [1988] HCA 44; (1988) 165 CLR 107.
It is convenient to digress for a moment to encapsulate the appellant’s approach to this most recent litigation. As part of the process of determining whether or not to grant permission to the appellant to bring these proceedings in the District Court, Blue J addressed and dismissed a number of the respondents’ procedural defences, as earlier referred to.
His Honour also reviewed the appellant’s factual basis for his claim in accordance with affidavit evidence put before his Honour but without being in a position to make, and without making, findings of fact as to the merits of the claim. His Honour decided that the claim, as asserted by the appellant, was “tenable” or reasonably arguable on the basis of the information (albeit untested) then before his Honour. Accordingly, permission was granted to the appellant as a declared vexatious litigant, and pursuant to section 39 of the Supreme Court Act 1935, to bring the claim in the District Court.
In so doing, Blue J considered various factual and legal arguments that were in favour of or against particular contentions of law or fact asserted by the appellant and, on occasion, expressed a preliminary view but never a concluded view. Whilst his Honour discussed, in various contexts, the Executed Heads of Agreement, he was not required to and did not make any findings as to its validity or applicability to the appellant’s “tenable” claim against the respondents.
Nevertheless, before this Court, the appellant has repeatedly and erroneously sought to elevate statements made by Blue J to the status of findings of fact and determinations of law binding on the Judge. As a consequence, the appellant has, in large part, taken a misconceived approach to both his defence to the respondents’ summary judgment application before the Judge and on appeal before this Court. He has steadfastly focused on the merits of his factual allegations against the respondents, as he perceives them to be, and, in this respect, has sought to rely on what he asserts to be binding findings by Blue J.
However, there was only a single issue, albeit one giving rise to a number of sub-issues, before the Judge and on appeal to this Court. That issue is whether, at the interlocutory level, that is, without the need to consider any evidence concerning the merits of the appellant’s claim to be entitled to a total and permanent disability benefit, the Executed Heads of Agreement provides a complete defence to that claim, no matter how meritorious it might otherwise be shown to have been.
The Judge’s reasons
Rule 232 of the District Court Civil Rules 2006 is in these terms.
232—Summary judgment
(1)The Court may, on application by a party, give summary judgment for that party.
(2)Summary judgment may only be given if the Court is satisfied that—
(a) if the applicant is a plaintiff—there is no reasonable basis for defending the applicant’s claim; or
(b) if the applicant is a defendant—there is no reasonable basis for the claim against the applicant.
When a court is addressing a defendant’s application the question becomes whether there is a real question to be tried and whether the plaintiff’s claim has a reasonable, as distinct from a fanciful, prospect of success.[20] In Davies v Minister for Urban Development and Planning,[21] Bleby J stated the test as whether there was no reasonable basis for the claim against the defendant. It is well accepted that the power to dismiss must not be lightly exercised. In Agar v Hyde,[22] Gaudron, McHugh, Gummow and Hayne JJ observed:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
(footnote omitted)
[20] Ceneavenue Pty Ltd v Martin [2008] SASC 158; (2008) 106 SASR 1 at [78]. See also the discussion of the cognate provisions in s 31A of the Federal Court of Australia Act 1976 (Cth) in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.
[21] [2011] SASC 87; (2011) 109 SASR 518 at [32].
[22] [2000] HCA 41; (2000) 201 CLR 552 at [57]. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 46.
The Judge had before him a substantial quantity of affidavits (including 13 affidavits[23] by the appellant with multiple exhibits) and other documentary material together with extensive written and oral submissions. The material before the Judge was voluminous and is itemised in his judgment.[24] His Honour reviewed the statement of claim and the evidence relied on by the parties and made a number of intermediate findings of fact before reasoning in the following terms.[25]
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.
[23] The appellant complained that his twelfth and thirteenth affidavits were not accepted or taken into account by the Judge. However, this is not so. They were received during the hearing and marked for identification as MFI-P17 and MFI-P18. His Honour subsequently admitted them as exhibits P17 and P18, see [2017] SADC 57 at [43], [225].
[24] [2017] SADC 57 at [43]-[45].
[25] [2017] SADC 57 at [193]-[196].
His Honour proceeded to dismiss the appellant’s application for summary judgment and to allow the respondents’ application. In so doing, he found: that the Executed Heads of Agreement was valid and binding on its parties; that there was no impediment to the respondents also relying upon it notwithstanding that they were not a party; and that, by its terms, it excluded any further liability of the respondents.
It is apparent from the judgment that the Judge paid close attention to the evidence and engaged in a detailed reasoning process in arriving at a number of findings of fact which included the following.[26]
[26] In what follows I have not used the language of the Judge when referring to the three versions of the Heads of Agreement dealt with at the mediation. I have incorporated instead my definitional terms.
(i)A three page document titled “HEADS OF AGREEMENT”, partly in type script and partly in the handwriting of the mediator, was initialled by some of the persons present at the mediation some time on 26 October 1998.[27] I will refer to this document as the “26 October 1998 initialled in principle Heads of Agreement”.
[27] [2017] SADC 57 at [83].
(ii)Whilst the parties initialled this document which the appellant described before the Judge as “the first version of the Heads of Agreement”, the Judge was unable to find “upon what precise basis they did so” but considered it most likely that the persons who initialled the draft did so to indicate their “in principle” agreement to the principal terms of it.[28]
[28] [2017] SADC 57 at [85]-[86].
(iii)The appellant understood at material times, both prior to and during the mediation on 26 October 1998, that all issues in dispute between him and MMAL and any part of MMAL, including the Fund, “were to be and were subject of” the mediation.[29]
(iv)The appellant understood at the mediation that one of the persons there, a Mr Breugem,[30] was representing both MMAL and the Fund[31] and the appellant knew, at the time of the mediation, that MMAL was prepared to direct the trustee of the Fund pursuant to the trust deed.[32]
(v)The appellant intended that the 26 October 1998 initialled in principle Heads of Agreement reflected an in principle settlement of all issues between the appellant and MMAL including any superannuation payable by the Fund. The appellant understood, when he read this document on 26 October 1998, that it recorded his agreement to accept the sum of $200,000 in full and final settlement of any entitlements he may have to sick leave, compensation, damages and superannuation including any entitlement with respect to any total and permanent disability. These matters were clearly and unambiguously reflected in the 26 October 1998 initialled in principle Heads of Agreement, the 27 October 1998 re-engrossed in principle Heads of Agreement[33] prepared the next day and the Executed Heads of Agreement.[34]
(vi)It was anticipated by the parties at the mediation on 26 October 1998 that the 26 October 1998 initialled in principle Heads of Agreement would be engrossed for signing or for further consideration and then for final signing the next day, that is, 27 October 1998.[35]
(vii)On 27 October 1998, a re-engrossment of the 26 October 1998 initialled in principle Heads of Agreement was presented at the mediation. This document incorporated not only the previous handwriting of the mediator but some other changes (the 27 October 1998 re-engrossed in principle Heads of Agreement).[36]
(viii)On the morning of 27 October 1998, the appellant and representatives of MMAL discussed the 27 October 1998 re-engrossed in principle Heads of Agreement and agreed to it, subject to a number of changes.[37]
(ix)After the appellant and representatives of MMAL agreed to the changes, the third and final version (that is, the Executed Heads of Agreement) was engrossed and executed by everyone present, including by the appellant and the appellant’s wife.[38] This is the document, the full terms of which have been set out earlier in paragraph [24] of these reasons.
(x)The Executed Heads of Agreement is the document which has been the subject of litigation between the parties during the years subsequent to 27 October 1998 and it is the document the parties agreed to and executed on 27 October 1998, “each understanding what they were agreeing to and agreeing to be bound by”.[39]
(xi)The appellant understood that the $200,000 referred to in the Executed Heads of Agreement included a sum to be paid from the Fund which was in settlement of all claims he had or may have in respect of superannuation. The appellant agreed in consideration of such sum not to institute any legal proceedings in respect of any superannuation which may be payable by the Fund.[40]
(xii)The appellant intended that the Fund be bound by the agreement in which he had entered with MMAL. In this context, the appellant understood that Mr Breugem was at the mediation representing the Fund as well as MMAL.[41]
[29] [2017] SADC 57 at [92].
[30] Mr Breugem was a director of the first respondent between 11 April 1996 and 14 March 2003.
[31] As earlier noted, the first respondent was at all material times a wholly owned subsidiary of MMAL.
[32] [2017] SADC 57 at [94].
[33] See (vii) below.
[34] [2017] SADC 57 at [95]-[97].
[35] [2017] SADC 57 at [98].
[36] [2017] SADC 57 at [108].
[37] [2017] SADC 57 at [109].
[38] [2017] SADC 57 at [110].
[39] [2017] SADC 57 at [111].
[40] [2017] SADC 57 at [112].
[41] [2017] SADC 57 at [113].
The Judge proceeded to make additional findings concerning the appellant’s state of knowledge or understanding as at the time he signed the Executed Heads of Agreement. It is unnecessary to identify these findings or the basis for them at this stage. His Honour then expressed the following conclusions.[42]
On these findings I reject the plaintiff’s non est factum claim that his signature to the Heads of Agreement was obtained by fraud or by mistake, or that it is or would be unconscionable to allow it to stand as a valid and binding agreement.
My conclusion is that the Heads of Agreement dated 27 October 1998 is a valid and binding agreement and that it is the agreement that was reached between the parties to it and was executed by them on 27 October 1998. I reject the plaintiff’s submissions regarding the fact that there is no “Deed of Release” or that the agreement offends special laws that apply to Heads of Agreement.
[42] [2017] SADC 57 at [177]-[178].
The Judge then proceeded to deal with and dismiss a number of legal arguments relied upon by the appellant in support of his argument that the respondents were not entitled to rely on the Executed Heads of Agreement as a complete answer to the plaintiff’s claim.[43] A number of these contentions are reflected in the appellant’s grounds of appeal and will be dealt with in that context.
The appeal
[43] [2017] SADC 57 at [179]ff.
Materials before the Full Court on appeal
In addition to those materials that were before the Judge, as contained in the two volume casebook before this Court, the materials relied upon by the appellant and that were before the Court included:
(i)a volume headed “Indexed Casebooks” comprising nine documents;
(ii)a list of authorities marked in accordance with the appellant’s numbering system HD8069;
(iii)a document headed “[the appellant’s] Summary of Argument” with various documents attached, filed 27 June 2017, and marked HD8056;
(iv)a document headed “[the appellant’s] Further Summary of Argument” with various documents attached, filed on or about 10 August 2017, and marked HD8068;
(v)a document headed “[the appellant’s] Reply to the Respondents’ Summary of Argument” with two documents attached, filed 26 September 2017 and marked HD8080;
(vi)a document headed “[the appellant’s] Further Reply to the Respondents’ Outline of Submissions” with various documents attached, filed 3 October 2017 and marked HD8083;
(vii)a document headed “[the appellant’s] Second Further Reply to the Respondents’ Outline of Submissions” with various documents attached, received in the Registry on 6 October 2017 and marked HD8084;
(viii)a document headed “[the appellant’s] Final Reply to the Respondents’ Summary of Argument” dated 3 October 2017 together with various documents, filed on 10 October 2017 and marked HD8089;
(ix)a document headed “[the appellant’s] Written Submissions with respect to section 119 of the Workers Rehabilitation and Compensation Act 1986 (SA)” together with various documents, filed 11 October 2017 and marked HD8902;
(x)a document headed “[the appellant] raises and sets up a defence of an abuse of process” received 6 October 2017;
(xi)a document headed “[the appellant] raises and sets up an estoppel by representation”; two versions, both received 6 October 2017;
(xii)a document headed “[the appellant] raises and sets up an estoppel by agreement” received 6 October 2017.
Grounds of and issues arising on the appeal
The notice of appeal contains 12 grounds of appeal in paragraphs 3.1 to 3.12 inclusive; grounds 3.3 and 3.5 each contain six subgrounds. Some of the grounds or subgrounds do not clearly identify a ground of appeal and there is some overlapping between some of the grounds and subgrounds. The contentions raised on appeal can be identified as follows.
(i)The Judge erred in the procedure adopted, in particular, by deciding the matter summarily without hearing or taking account of all evidence relevant to the merits and in failing to decide the case on the merits (ground 3.3, including subgrounds 3.3.1 to 3.3.6 and grounds 3.6, 3.7, 3.9, 3.10, 3.11 and 3.12).
(ii)The Judge erred in failing to provide reasons or adequate reasons for his findings of fact (ground 3.4).
(iii)The Judge erred in that he did not have evidence to support certain “findings of fact” as particularised (ground 3.5 and subgrounds 3.5.1, 3.5.2 and 3.5.3). The appellant has also provided as particulars of this ground 3.5, the matters asserted in subgrounds 3.5.4, 3.5.5 and 3.5.6. However, these three contentions are best addressed as independent grounds of appeal (see (iv), (vi) and (v) below respectively).
(iv)The Judge erred in applying the High Court’s Trident analysis to the Executed Heads of Agreement and, in particular, in finding that there was an intention on the part of MMAL and the appellant to create a trust in favour of the respondents. In addition, the Judge erred in adopting this analysis in circumstances where MMAL is not a party to the present litigation (ground 3.8 and subground 3.5.4).
(v)The Judge erred in failing to find that the Executed Heads of Agreement was not able to be relied upon by the respondents in circumstances where they engaged in a breach of trust, as alleged in the appellant’s statement of claim (subground 3.5.6).
(vi)The Judge erred in failing to correctly deal with the conduct of the parties, including the respondents, which took place after the Executed Heads of Agreement was entered into and should have found on the basis of that conduct some form of estoppel or waiver as against the respondents (ground 3.5.5).
(vii)The Judge erred in failing to find that the Executed Heads of Agreement was non est factum and therefore void as against the appellant (ground 3.2).
(viii)The Judge erred in failing to find that the Executed Heads of Agreement was in breach of section 119 of the Workers Rehabilitation and Compensation Act 1986 (SA) and therefore void or unenforceable as against the appellant (ground 3.1).
The complaint that the Judge erred in the procedure adopted and in particular by deciding the matter summarily without dealing with the merits (grounds 3.3, 3.6, 3.7, 3.9, 3.10, 3.11 and 3.12)
By subgrounds 3.3.1, 3.3.2 and 3.3.4, the appellant complains, respectively, that no defence was filed by the respondents, no discovery was made by the respondents or by MMAL and that no evidence was taken from any of the people who had represented MMAL during the mediation. By grounds 3.9 and 3.11 the appellant complains that the Judge erred in failing to order the respondents to file a defence and to make discovery and in failing to list the matter for a full trial on the merits. By subgrounds 3.3.3 and 3.3.5, the appellant complains that no documents were provided by the respondents in response to a Notice to Produce directed by the appellant to the respondents. By subground 3.3.6, the appellant complains that no documents were produced or evidence given by any person on behalf of the respondents or MMAL of communications and dealings between them before, during or after the mediation in October 1998.
Essentially, the appellant complains that the Judge proceeded to consider whether or not the parties’ dispute might be resolved on a summary basis rather than conducting a full trial on the merits after requiring each of the parties to engage in the full gambit of interlocutory steps ordinarily to be taken before a full trial on the merits can proceed. The former was what the Judge was asked to do by both the appellant in accordance with his application for summary relief and by the respondents in accordance with their application for summary relief. The appellant’s claim for summary relief was untenable, based, as it was, on the assertion that Blue J had already finally decided all relevant issues. As a consequence, the sole question before the Judge was whether, in the face of the terms of the Executed Heads of Agreement, the appellant’s claim had any reasonable, as distinct from a fanciful, prospect of success.
As stated earlier in these reasons, a power to summarily dismiss an action is not to be exercised lightly. A dispute is not to be resolved summarily where, in order to do so, substantial questions of disputed facts need to be resolved or complex and interdependent questions of law need to be determined.[44] Such issues do not arise in this case. Again, and at risk of being unduly repetitive, the respondents’ application required a determination of whether or not the Executed Heads of Agreement operated to create a trust in favour of the respondents of the appellant’s promise or covenant not to sue, in accordance with the proper application of the reasoning in Trident.
[44] JT Nominees Pty Ltd v Macks [2007] SASC 151; (2007) 97 SASR 471 at [88].
Whether or not the Judge was correct in summarily determining the matter against the appellant, as his Honour did, will turn on other matters raised in other grounds of appeal. However, given the nature of the present dispute between the parties and the history of the appellant’s disputation with both MMAL and the respondents, it was not inappropriate for the respondents to seek to have this particular dispute resolved on a summary basis.
It is the respondents’ contention that the terms of the Executed Heads of Agreement, properly construed, were to the effect that the Fund was to be the beneficiary of promises made by the appellant including a covenant not to institute legal proceedings with respect to any claimed superannuation entitlements. According to the respondents, the sum of $200,000 paid to the appellant was in full and final settlement of the appellant’s rights, if any, against both MMAL and the Fund. The issue before the Judge was the same issue that came before Finn J in the Federal Court.[45] Finn J also determined the issue against the appellant albeit, according to Blue J,[46] in circumstances that did not give rise to any form of procedural estoppel.
[45] Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (No 3) [2009] FCA 53.
[46] Attorney-General v Kowalski [2015] SASC 123.
The appellant has engaged in numerous sets of proceedings in the 19 years following entry into the Executed Heads of Agreement and the respondents have been the subject of multiple proceedings during that period.[47]
[47] The various proceedings involving the respondent are summarised in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 (Bleby J), Soden v Kowalski [2011] FCA 318 (Stone J) and Attorney-General v Kowalski [2014] SASC 1 (Blue J).
This Court has twice declared the appellant to be a vexatious litigant on the applications of first, MMAL and second, the Attorney-General.[48] Further, the Federal Court has declared the appellant to be a vexatious litigant upon the application of various applicants including MMAL and the respondents.[49] It was put by counsel for the respondents, and I have no reason not to accept, that MMAL and the respondents have incurred legal and other expenses in the millions of dollars as a result of being embroiled in litigation with the appellant over the past 19 years or so and that all of the numerous costs orders made in favour of MMAL and the respondents remain unpaid.
[48] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 (Bleby J), Attorney-General v Kowalski [2014] SASC 1 (Blue J).
[49] Kowalski v Mitsubishi Motors Australia Ltd; Kowalski v Soden (In his capacity as Registrar of the Federal Court of Australia) [2011] FCAFC 159; (2011) 198 FCR 153.
In these circumstances, it was entirely appropriate for the Judge to consider whether or not the matter could be determined on a summary basis without the need for the significant further expense and delay of a trial on the merits, and for the Judge to proceed to conduct a “mini trial” in the manner discussed in his judgment and emulating the approach taken when the same issues arose before Finn J in the Federal Court. The appellant’s more general complaints under appeal ground 3.3 and its subgrounds and appeal grounds 3.6, 3.9 and 3.11 are misconceived.
As to the appellant’s specific complaint in subgrounds 3.3.3 and 3.3.5 about a failure by the respondents to produce documents in support of a notice to produce filed in the District Court, the respondents have provided this written submission.
[The appellant] makes a further complaint that there was no production of documents in response to a Notice to Produce he filed in the District Court. The respondents answered each of the requests in the Notice to Produce at the hearing before [the Judge] on 14 April 2016.[50] For certain requests, there were no documents to produce, for other requests there were no documents additional to the already extensive amount of documentary material annexed to the affidavits filed by the respondents and [the appellant]. [The appellant] did not cross-examine either Mr Smelt or Mr Altorfer [the deponents to the respondents’ affidavits] to suggest that other documents existed or could reasonably be expected to exist. There is nothing compelling to suggest that other documents should exist. [The appellant’s] central complaint appears to be that there should be internal documents of MMAL or the Fund explaining why the Fund was not made a party to the Heads of Agreement even though the terms of that agreement were intended to benefit and burden the Fund and deal with [the appellant’s] superannuation entitlements. The absence of such documents is hardly surprising. That the Fund is not a party to the Heads of Agreement firmly suggests no one turned their mind to the issue of whether or not it should be a party, with the consequence that there would be no documents evidencing consideration of the Fund being made a party.
I accept this submission as being a proper and adequate response to both the Notice to Produce itself and to the appellant’s grounds of appeal on this topic.
[50] Transcript of Proceedings before [the Judge], 14 April 2016, T18.23-21.1.
Further, the obligation to produce documents in response to a Notice to Produce is prescribed by rule 215 of the District Court Civil Rules 2006, which provides, inter alia, and material for present purposes, that a party must produce at trial a document in the party’s possession if another party has, by notice to the party, required production of the document at the trial.[51] It does not appear that the word “trial” is specifically defined for the purposes of this rule or the Rules generally. I leave aside the question of whether or not rule 215 operates with respect to the hearing of an application for summary judgment; I am dubious.
[51] Rule 215(1)(c).
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