Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd

[2007] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION PTY LTD

[2007] SASC 44

Judgment of The Honourable Justice Vanstone

21 February 2007

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME

Application for extension of time to institute appeal - application for extension of time to set down appeal - extension of time sought to await Ombudsman's decision regarding Court's refusal to remit filing fee - no reason to believe decision of Ombudsman would lead to change in Court's decision - application for extension of time to set down appeal misconceived as appeal not yet instituted - applications refused.

Supreme Court Rules 1987 (SA), rr 95.02, 95.11; Supreme Court Rules 2006 (SA), rr 8(1)(c), 284, referred to.
Lyberopoulos v Svilans & Ors [2001] SASC 254, considered.

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA STAFF SUPERANNUATION PTY LTD
[2007] SASC 44

Civil

1. VANSTONE J:     Mr Kowalski applies for an extension of time within which to institute an appeal from a decision of the Chief Justice and, in the alternative, an extension of time in which to set down his appeal. 

2. On 19 April 2005 Bleby J declared that Mr Kowalski had persistently instituted vexatious proceedings as defined by s 39(1) of the Supreme Court Act1935.  His Honour ordered that Mr Kowalski was prohibited from instituting further proceedings against Mitsubishi Motors Australia Ltd or any corporation related to it, without leave of the Court.

3. On 19 April 2006 Judge Lunn granted Mr Kowalski such leave, allowing him to institute proceedings in the District Court against Mitsubishi Motors Australia Staff Superannuation Pty Ltd.

4. On 1 June 2006 the Chief Justice revoked that leave.  However on 22 June 2006 his Honour granted Mr Kowalski leave to file a Notice of Appeal, and leave to appeal against the order revoking leave, but limited the grounds of such an appeal to certain only of those set out in his proposed Notice of Appeal.  Essentially the appeal was to be restricted to the question of whether a single judge had jurisdiction to revoke leave in these circumstances.

5. When Mr Kowalski went to file his Notice of Appeal he sought remission of the filing fee.  That was refused on 6 July 2006.  Mr Kowalski sought an opportunity to put further material before the Court and was permitted to do so.  On 7 August 2006 Judge Lunn indicated that he was not persuaded that the refusal to waive should be varied or revoked.  There does not appear to be any right of appeal from that decision:  Lyberopoulos v Svilans & Ors [2001] SASC 254 per Lander J.

6. Mr Kowalski has apparently taken the matter of failure to remit fees to the Ombudsman.  He argues that the Ombudsman might, after investigation, make some sort of finding which in turn might incline the Court to consider the matter afresh and remit the filing fee.

7. In the meantime the time limit for instituting the appeal elapsed on 6 July 2006: Supreme Court Rules 1987, r 95.02. Mr Kowalski asks me to extend that time indefinitely, in effect, to await the Ombudsman’s decision and the Court’s reaction, if any, to it. In other words the order he seeks is an open-ended one. In similar vein he seeks as an alternative an extension of time within which to set down his appeal: r 95.11.

8. During argument Mr S J White, for the respondent, suggested that if events proceed as the applicant hopes and the Ombudsman makes some sort of finding in his favour, and if the Court is prepared to give weight to it, then that course of events would plainly be relevant on any future application for an extension of time.  I consider there is force in that analysis. 

9. Mr Kowalski was asked why that procedure would disadvantage him.  His answer was that he considered that he would be less able to persuade the Court to extend time at some point in the future than he is at present. 

10. In addition to the merits of this application, Mr White addressed several procedural issues. He argued that the application was misconceived inasmuch as it was made under the Supreme Court Rules 1987 and should have been made under the new rules, as an appeal has never been instituted. (See Supreme Court Rules 2006, rr 8(1)(c) and 284.) I do not pause to determine whether that submission is correct, although on the face of it has substantial merit. I am prepared to determine this issue on the merits.

11. In addition, Mr White submitted that the statement of claim which Judge Lunn originally granted leave to file was a different document from that which the applicant went on to file in the District Court.  Mr White suggested that the claim is relevantly different.  That, he put, tends to undermine the utility of the current application, because even if the leave granted by Judge Lunn stood, it would not cover the statement of claim in its current “iteration”. 

12. Furthermore, Mr White told me that Mr Kowalski recently has taken proceedings in the Federal Court seeking the same remedy.  Essentially, it is argued, the applicant is seeking to concurrently run two actions seeking the same relief. 

13. Again, these are matters of significance.  However, as it seems to me that Mr Kowalski cannot succeed in the application before me, there is little point in my saying more about them.

14. In my view the application for an extension of time is unmeritorious.  There is no reason to think that any determination made by the Ombudsman will have an impact on the Court’s attitude to remission of the filing fee.  But even if it does, as counsel put, Mr Kowalski can at that point seek an extension of time within which to appeal.  If the matter went as he hoped, then he would be on no worse a footing then than he is now.  Under no circumstances would I be prepared to grant an open-ended extension of time.  Moreover there is no material before me from the Ombudsman to prove that there is any probability of his making a finding which could assist Mr Kowalski, or any finding at all.

15. I consider the alternative application is misconceived.  Plainly if the applicant is ultimately successful in instituting his appeal, the time for setting it down will then run.

16. The application, which is found in FDN 55, is refused.

17. At the time of the hearing I heard submissions as to costs of this application.  They should follow the event.

18. The orders I make are:

    1.     applications in Notice for Specific Directions (FDN 55) are refused;

    2.Mitsubishi Motors Australia Staff Superannuation Pty Ltd is to have its costs of and incidental to the applications.