Kowalski v Sim & Ors
[2019] SASCFC 96
•9 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KOWALSKI v SIM & ORS
[2019] SASCFC 96
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Parker)
9 August 2019
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - DISABILITY - UNSOUNDNESS OF MIND - OTHER MATTERS
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
Kowalski (K) has twice been declared by Justices of this Court to be a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935. In early 2017, K applied for permission under s 39 (s 39 permission) to reinstate an appeal or to file a new appeal (the two alternatives), against the orders of District Court Judge Anderson made on 21 March 2002 (the subject judgment) whereby he dismissed K’s claim for damages for professional negligence against the respondents.
On 17 August 2017, Blue J granted s 39 permission, limiting quantum to $18,634.66 and making very plain to K that it was not for his Honour to decide whether an extension of time should be granted; that was a matter for this Court. K now seeks the extension of time of about 16 years, under either alternative.
Long before 2017, K was well aware that the correct approach was to attempt to appeal directly against the subject judgment and that any such attempt would face the matter of extension of time as a serious issue. On 20 November 2006, K attempted to attack the subject judgment by filing in that action an interlocutory summons seeking to set it aside. There followed numerous hearings, rulings against K and further interlocutory applications by K, eventually culminating in District Court Judge Nicholson (as his Honour then was) again ruling against Kowalski and stating inter alia in his reasons (a copy of which were provided to K) that the appropriate avenue was for K “to attempt to appeal the judgment. I accept that [K] is now well out of time. It would follow that [K] would need to seek leave to appeal the judgment out of time.”
Rather than heeding that advice, K persisted for a further long period in initiating numerous further proceedings against the respondents designed to recover the amount of $18,634.66, including: (1) various proceedings seeking to require the respondents to tax their costs in respect of which the amount was appropriated; (2) various proceedings in the Federal Magistrates Court and the Federal Court; (3) various private criminal prosecutions; and (4) various proceedings in the Industrial Relations Court.
K now offers no real reason why the delay of sixteen years has occurred and why he did not take his present proposed course a long time ago.
Held by the Court, refusing to grant the extension of time sought:
1. In exercising the discretion as to extension of time, many factors may be taken into account. Here they include strong analogies with abuse of process principles, re-litigation principles and Anshun principles. K's continuing behaviour over the 16 year period is such that a powerful set of considerations militating against an extension of time is present. Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 considered. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to.
2. There is now considerable authority that, in deciding whether to grant an extension of time in civil cases, the Courts should, to a greater extent than in the distant past, take into account broader community interests as well as the parties’ immediate interests. Important matters include the effect on Court resources and the competing claims by litigants in other cases awaiting hearing. Phrases such as “case flow management” or “case management” allude to some but not all of the salient matters. Sali v SPC Ltd (1993) 116 ALR 625; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699; Jackamarra v Krakouer (1998) 195 CLR 516 considered.
3. Factors militating against the granting of an extension of time here include that: (1) the extension of time sought is very long; (2) K has not advanced any good reason for that delay; (3) K has made previous attempts to challenge the subject judgment without having to face an application for an extension of time in which to appeal, all unsuccessful; (4) K has previously made numerous attempts to recover the same amount of the present quantum sought ($18,634.66) by other forms of litigation, all unsuccessful; (5) Kowalski’s behaviour up to the present has had a deleterious impact upon the respondents in both mental and financial terms, the latter detriment likely to well exceed the present quantum of $18,634.66; (6) the proposed appeal raises no matter of law or of public importance; and (7) the appropriate use of finite Court resources and the fact that the amount claimed is at the lower end of the scale of monetary claims with which the Full Court would usually deal.
4. While Blue J found that the two proposed grounds of appeal are “reasonably arguable”, even if the assessed prospects of success were significantly greater than that, the very lengthy extension of time sought would not be justified having regard to the cumulative weight of the matters militating against a grant. Gallo v Dawson (1990) 93 ALR 479 referred to.
Supreme Court Act 1935 s 39; District Court Act 1991 s 43(1); Limitation of Actions Act 1935 s 45, s 48(3), s 48(3a); Workers Rehabilitation and Compensation Act 1986 s 43; Supreme Court Civil Rules 2006 r 117, r 296; Supreme Court Rules 1987 r 95.11(3); Federal Court Rules 1979 (Cth) O 21; Legal Practitioners Act 1981 s 42(1); District Court Civil Rules 2006 r 53(2), r 242, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Attorney-General v Kowalski [2014] SASC 1; Baird v Magriplis (1925) 37 CLR 321; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; Cole Harris Pty Ltd v Kowalski (Unreported, Supreme Court of South Australia, Judge Lunn, 15 October 2007); Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516; Jago v District Court of New South Wales (1989) 168 CLR 23; Kowalski v Sim & Ors [2002] SADC 30; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Sali v SPC Ltd (1993) 116 ALR 625; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699; Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136, discussed.
Attorney-General v Kowalski (No 6) [2017] SASC 122; Brisbane South Regional Health Authority v Taylor (1996) 186; Calvaresi v Lawson (1985) 184 LSJS 147; Conrad v The Chermside Hospitals Board [1982] Qd R 242; Dearman v Dearman (1908) 7 CLR 549; Hocking v Bell (1945) 71 CLR 430; Kowalski v Bourne & RJ Cole & Partners [2015] SAIRC 17; Kowalski v Cole & Ors [2012] SASC 30; Kowalski v Cole & Others [2011] SAIRC 61; Kowalski v Cole [2009] FMCA 1222; Kowalski v Cole [2010] FCA 410; Kowalski v Cole [2017] SASCFC 23; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433; Kowalski v Mitsubishi Motors Australia Ltd [2006] HCATrans 301; Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; Kowalski v R J Cole & Partners [2014] SASC 137; Kowalski v RJ Cole & Partners (2015) 122 SASR 320; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Soden v Kowalski [2011] FCA 318, considered.
KOWALSKI v SIM & ORS
[2019] SASCFC 96Full Court: Kourakis CJ, Peek and Parker JJ
THE COURT: Mr Kazimir Kowalski (to be referred to as Kowalski)[1] seeks to appeal against the judgment of District Court Judge Anderson delivered on 21 March 2002 in which his Honour dismissed Kowalski’s claim for damages for professional negligence against the then members of the firm RJ Cole & Partners (Cole, Harris and Sim) and a then employee (Dowd).[2]
[1] Persons mentioned frequently will be referred to by surname only.
[2] It was agreed that the firm was vicariously liable for Dowd’s actions. The proceedings before Judge Anderson, and now before this Court were, and are, styled ‘Kowalski (Appellant) v Sim, Harris, Cole, Dowd & RJ Cole & Partners (a firm) (Respondents)’ but it is convenient to refer to the defendants or respondents collectively as ‘RJ Cole & Partners’. Other proceedings brought by Kowalski against the same persons in related matters have sometimes been styled, or referred to as, Kowalski v RJ Cole & Partners, Kowalski v Cole and so on; but the underlying parties have been the same. We will return to such matters below.
On 3 December 2018, this Court heard submissions by Kowalski that his application for an extension of time of about 16 years within which to appeal[3] should be granted and that, should such application be successful, his appeal be allowed. Judgment was reserved on all matters.
[3] The two bases upon which this application was put are referred to below.
A brief survey of the facts presently relevant
In 1986, Kowalski was employed by Mitsubishi Motors Australia Ltd (MMAL). He asserts that he suffered an eye injury at work (the eye injury) and that later, in a separate incident at work on 9 May 1989, he suffered a back injury (the back injury). On 20 August 1990, RJ Cole & Partners, who were acting as solicitors for Kowalski, instituted an action in the District Court for common law damages for the back injury (the back injury claim). The action proceeded to trial in 1992 before District Court Judge Lee in Kowalski v Mitsubishi Motors Australia Ltd[4] (the back injury trial). His Honour reserved judgment in March 1992.
[4] Kowalski v Mitsubishi Motors Australia Ltd (Unreported, District Court of South Australia, 3 July 1992).
On 30 March 1992, RJ Cole & Partners rendered an account to Kowalski for their costs in the back injury claim (including the trial) in the amount of $18,634.66.
On 3 July 1992, Judge Lee delivered his judgment and dismissed the back injury claim. His Honour found that Kowalski had not sustained the injury in the manner that he alleged and stated:[5]
As for the events of 9 May 1989, the plaintiff has failed to persuade me that he slipped on oil in the way that he described. … Perhaps, at or about the time of his discussion with Dr Balkwill on 11 May 1989, the plaintiff reconstructed a mere slip or stumble or twist to found a claim for damages. Perhaps his only injury was an injury sustained on 11 May 1989 at his desk. Wherever the truth lies, his version of events fails for want of the requisite degree of proof.
[5] Kowalski v Mitsubishi Motors Australia Ltd (Unreported, District Court of South Australia, 3 July 1992).
On 31 August 1992, RJ Cole & Partners withdrew the amount of $18,634.66 from trust money then held on behalf of Kowalski and appropriated the amount of $18,634.66 to the payment of the fees account in relation to the back injury claim dated 30 March 1992 in the amount of $18,634.66.[6]
[6] Although not directly relevant, on 2 September 1992, RJ Cole & Partners also withdrew the amount of $483.79 from trust money then held on behalf of Kowalski and appropriated it to the payment of a previous fees account in relation to the eye injury claim in the amount of $483.79.
On 16 July 1996, RJ Cole & Partners filed in Supreme Court Action No. 1563 of 1996 an application to tax a bill of costs for acting for Kowalski in the back injury claim (the 1996 taxation).
The professional negligence litigation
On 31 July 1996, Kowalski instituted proceedings in the District Court against the firm of RJ Cole & Partners for professional negligence in its conduct of the back injury claim. The action proceeded to trial on 3 December 2002 before Judge Anderson (the professional negligence trial). On 21 March 2002, his Honour gave judgment for the defendants: Kowalski v Sim & Ors.[7] It is this judgment that is the subject of the present application to this Court.
[7] [2002] SADC 30.
On 3 April 2002, Kowalski attempted to file an appeal against that judgment. However, he did not pay the required filing fee (which he urged should be waived) and he did not serve any of the respondents with a purported “appeal”. There is therefore a real dispute as to whether an appeal was ever validly instituted. However, even if an appeal was at one time on foot, Kowalski never set the appeal down for hearing and it would have been automatically dismissed in October, 2012, six months after its filing.[8] These matters are further discussed below.
[8] Pursuant to the then Supreme Court Rules 1987 r 95.11(3).
The vexatious litigant declarations
Kowalski has twice been declared by Justices of this Court[9] to be a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935, and both declarations involved a number of matters that have some bearing on the present proceedings. We will briefly refer to the two sets of vexatious litigant proceedings.
[9] Similar orders have been made by the Federal Court: see Soden v Kowalski [2011] FCA 318 (Stone J); on appeal to the Full Federal Court: Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159 (Jacobson, Siopis and Nicholas JJ).
The 2005 declaration of Mr Kowalski as a vexatious litigant (Bleby J)
Much litigation involving Kowalski occurred prior to 2005 which is referred to in many other judgments. For present purposes, we note that on 26 October 1998, following a mediation between MMAL and Kowalski, a document styled ‘Heads of Agreement’ to settle all claims by Kowalski for the payment of the amount of $200,000 was initialled; and, on 27 October 1998, MMAL and Kowalski executed the formal document settling the Kowalski claims for the payment of the amount of $200,000. Kowalski agreed inter alia not to institute further legal proceedings against MMAL.
However, despite this agreement Kowalski continued to initiate various proceedings against MMAL and, on 19 April 2005, after hearing lengthy proceedings instituted by MMAL in Supreme Court Action No. 297 of 2004, Bleby J declared Kowalski to be a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 in Mitsubishi Motors Australia Ltd v Kowalski[10] (the 2005 Bleby J vexatious litigant declaration).[11] Bleby J summarised the material before him on that application as follows:[12]
7. At the outset I invited Ms Layton QC, counsel for the plaintiff, to tender the affidavits and any other material on which she relied in support of the application. She tendered two affidavits of Mr Fountain together with numerous exhibits referred to in the affidavits. These were not objected to by the defendant. She also tendered a volume of some 52 decisions and judgments of Review Officers, of the Worker’s Compensation Tribunal, the District Court, the Supreme Court, the Federal Court of Australia and the Australian Industrial Relations Commission said to be relevant to the question of whether previous proceedings instituted by the defendant had been instituted vexatiously. Ms Layton did not rely on any other documentary or oral evidence.
[10] MitsubishiMotors Australia Ltdv Kowalski [2005] SASC 154.
[11] On 28 April 2005, Kowalski filed a notice of appeal against the judgment of Bleby J. On 22 November 2005, that appeal was dismissed by the Full Court: Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433. On 15 June 2006, the High Court dismissed Mr Kowalski’s application for special leave to appeal against that dismissal: Kowalski v Mitsubishi Motors Australia Ltd [2006] HCA Trans 301.
[12] MitsubishiMotors Australia Ltdv Kowalski [2005] SASC 154.
His Honour later observed:[13]
57. There have been decisions of other courts and tribunals placed before me which are not alleged to be vexatious or which, being decisions of a court or tribunal of the Commonwealth, cannot be the subject of proceedings under s 39(1) of the Supreme Court Act. Such decisions are nevertheless relevant as providing a contextual background against which the defendant has instituted proceedings in a court of this Stage and which are the subject of challenge by the plaintiff.
Vexatious proceedings
58. It is unhelpful to embark upon an analysis of what other courts have decided constitutes vexatious proceedings. Section 39(5) of the Supreme Court Act provides an exhaustive definition of what constitutes vexatious proceedings for the purpose of the section. Each paragraph of the definition requires the court to examine the circumstances surrounding the institution of the proceedings. It is not concerned with the manner in which the defendant conducted himself during the proceedings save to the extent that that may be an indicator of whether the proceedings were instituted for a purpose described in para.(a) of sub-section (5), or in order to ascertain whether there was any reasonable ground for instituting the proceedings. If the proceedings are utterly hopeless they will satisfy that description: Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [22]. If the proceedings have no prospect of success, or could have been or were in fact struck out as disclosing no reasonable cause of action, it is likely that they will be held to have been commenced vexatiously. Most of the proceedings alleged by the plaintiff to be vexatious are said to have been instituted without reasonable ground. However, some of the plaintiff’s allegations venture into the territory covered by para (a) of sub-section (5).
[13] MitsubishiMotors Australia Ltdv Kowalski [2005] SASC 154.
At paragraph [64] of his judgment, Bleby J set out in tabular form some 45 proceedings instituted by Kowalski[14] and reviewed each of them separately (at paragraphs [65] to [131] and [150] to [264]). After doing so, his Honour noted that there were additional proceedings in courts and tribunals not being courts to which s 39 of the Supreme Court Act applies:[15]
[14] His Honour observes at [64]: “Some decisions which are not relevant to any issue in the proceedings have been omitted. Some decisions, also not listed, are relevant but were not produced. These are recorded and referred to in decision No.30.”
[15] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.
Proceedings in non-state courts and tribunals 1998 – 2005
265. In addition to the proceedings summarised above, counsel for the plaintiff referred to a number of actions instituted by the defendant in courts and tribunals not being courts to which s 39 of the Supreme Court Act applies. The plaintiff is well aware of the limited scope of the orders that can be made pursuant to s 39 and has only sought to bring these proceedings to the attention of the Court in order to demonstrate the full extent of the defendant’s seemingly endless pursuit of litigation against the plaintiff and those connected with the plaintiff. Towards the end of the plaintiff’s submissions concerning these additional proceedings, the defendant objected to reference being made to proceedings before the Legal Practitioners Disciplinary Tribunal on the ground that they would be irrelevant to the issues to be determined by this Court. I disagree that evidence of these additional proceedings is completely irrelevant to the plaintiff’s present application. It is important to consider the respective positions of the parties in the broad context of all of the litigation which has occurred. Certainly if the defendant had been successful in any of these other actions he would want the Court to have regard to that fact. However, the weight which can be given to the institution of such proceedings, and to the outcomes and findings therein, is necessarily much less than the weight which I have placed upon the decisions outlined above. They are relevant only to the extent that they form part of the background and history of the disputes between the parties, which background and history might, in a particular case, have some bearing on whether one or more of the proceedings the subject of s 39 were instituted vexatiously. Persistence in such proceedings may also be relevant to the exercise of the Court’s discretion to make an order under s 39 if it is satisfied that the defendant has persistently instituted vexatious proceedings within the meaning of s 39(1).
After referring to authorities concerning the meaning of “persistently” in the present context, his Honour concluded:[16]
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.
…
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 recognizes the validity of what now must be described as hopeless claims. The plaintiff is entitled to the declaration it seeks in para.1 of the inter partes summons. It is also entitled to a declaration sought in para.3, although I will hear the parties further as to the precise terms of the order. As the evidence shows that there are existing proceedings instituted by the defendant which have also been instituted vexatiously, the plaintiff is entitled to an order under s 39(1)(b) staying those proceedings. I will hear the parties further as to the precise terms of any such order. I will also hear the parties as to the costs of the application.
[16] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.
The 2014 declaration of Mr Kowalski as a vexatious litigant (Blue J)
Much litigation involving Kowalski occurred between the 2005 Bleby J vexatious litigant declaration and 2014. Again, this is referred to in many other judgments. For present purposes, we note that on 20 January 2014, upon the application of the Attorney-General (SA), Blue J declared Kowalski to be a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 in Attorney‑General v Kowalski[17] (the 2014 Blue J vexatious litigant declaration). In his judgment Blue J, by way of overview, noted that:
1. The Attorney-General seeks a declaration that Mr Kowalski has persistently instituted vexatious proceedings within the meaning of section 39 of the Supreme Court Act 1935 (SA) (“the Act”). He seeks orders prohibiting Mr Kowalski from instituting future proceedings without permission of the Court and staying existing proceedings.
2. The Attorney-General contends that between November 1996 and May 2012 Mr Kowalski brought 109 applications in seven forums (“underlying matters”) which comprise proceedings instituted in a prescribed court and are vexatious within the meaning of section 39 of the Act.
3. The Attorney-General contends that all 109 applications are vexatious because they were instituted without reasonable ground and 65 applications are also vexatious because they were instituted for ulterior purposes. [Citations omitted]
[17] [2014] SASC 1.
Blue J referred to the previous proceedings before Bleby J thus:
754. In Mitsubishi Motors Australia Limited v Kowalski, Bleby J held that 24 of the underlying matters which are alleged in this action to be vexatious had been instituted by Mr Kowalski without reasonable ground.
755. The Attorney-General contends that it is an abuse of process for Mr Kowalski to seek to re‑litigate in this action the question whether those 24 underlying matters were vexatious when that was conclusively decided against him by Bleby J. The Attorney‑General relies upon the category of abuse of process referred to at [198] above.
756. The doctrines of res judicata, issue estoppel and issue availability estoppel are confined to the parties to the original litigation. The decisions as between Mitsubishi and Mr Kowalski do not bind Mr Kowalski as against strangers to that litigation such as the Attorney-General. The Attorney-General accepts that this is the position. However, the category of abuse of process relied upon by the Attorney‑General is capable of applying to a person who is a party to successive proceedings against different parties. [Citations omitted]
In the course of his Honour's 327-page judgment (plus five page annexure), Blue J undertook a very long and detailed examination of an extraordinary number of proceedings instituted by Kowalski in South Australian Courts and tribunals over the period from 18 November 1996 to 29 May 2012. Proceeding in a very conservative way, and giving the benefit of every doubt to Kowalski, his Honour found that 63 of these were “vexatious proceedings”.[18] His Honour concluded:[19]
[18] Like Bleby J, his Honour did not include a good deal of further litigation in which Kowalski indulged in the Federal Magistrates Court and the Federal Court since those are not prescribed Courts within s 39 of the Supreme Court Act 1935.
[19] [2014] SASC 1.
R. DISCRETION
1986. My conclusion that Mr Kowalski has persistently instituted vexatious proceedings merely enlivens, but does not dictate the exercise of, a discretion under section 39 of the Act whether to make an order prohibiting him from instituting further proceedings without permission of the Court and/or staying proceedings already instituted by him. Whether I should exercise that discretion raises its own considerations.
1987. An order under section 39 of the Act is an extreme remedy and is to be considered against the background of the fundamental principle that a person generally has a right to seek from the courts remedies for legal wrongs.
1988. Based upon Mr Kowalski’s conduct to date, unless an order is made under section 39(1)(a), it is almost certain that he will continue to institute future proceedings and it is likely that he will institute future proceedings which are vexatious. Unless an order is made under section 39(1)(b), it is almost certain that Mr Kowalski will prosecute proceedings which he has already instituted which are vexatious.
1989. It is a factor in favour of the exercise of discretion that, after Mr Kowalski was met with binding decisions by courts or tribunals dismissing or rejecting his claims, he continued to engage in litigation time and again against the relevant parties in circumstances which rendered that litigation vexatious. He expanded the litigation to encompass solicitors, counsel and advocates for those primary parties. In many cases he made extravagant and unfounded allegations. It is a factor in favour of the exercise of the discretion that, in the absence of an order, unnecessary time and expense is likely to be incurred by Mr Kowalski’s opponents in future litigation which is vexatious. In addition, the resources of the courts which are funded by the public are likely to be used for the purposes of vexatious litigation, being scarce resources otherwise devoted to other causes. It is a factor in favour of exercise of the discretion that there are several proceedings still on foot which I have concluded are vexatious.
1990. On my findings, Mr Kowalski has instituted vexatious proceedings over the course of more than a decade. He has instituted vexatious proceedings after April 2005 when Bleby J made an order under section 39 of the Act on the application of Mitsubishi and after April 2011 when Stone J made an order under Order 21 of the Federal Court Rules 1979 (Cth). While I have not relied in any way upon those decisions and observe that Mr Kowalski contends that they were wrongly made, the fact remains that Mr Kowalski has, on my findings, persisted with the institution of vexatious proceedings not controlled by those orders notwithstanding that the making of the orders should have had a salutary effect.
1991. Mr Kowalski has not only instituted vexatious proceedings at first instance, but has instituted numerous appeals and set aside applications which I have also found to be vexatious.
1992. Taking into account all of the circumstances, I am satisfied that I should exercise my discretion to make orders under section 39(1)(a) and (b) of the Act.
S CONCLUSION
1993. Mr Kowalski has persistently instituted vexatious proceedings within the meaning of section 39 of the Act. I am satisfied that I should exercise my discretion to make orders prohibiting Mr Kowalski from instituting further proceedings without the permission of the Court and staying existing proceedings which have been instituted by him.
1994. I will hear the parties as to the precise orders to be made. [Citations omitted]
The present proceeding before this Court
In early 2017, Kowalski applied for permission under section 39 of the Supreme Court Act 1935 (section 39 permission) to reinstate an appeal, or alternatively, to file an appeal, against the subject 2002 professional negligence judgment. On 7 February 2017, Blue J directed Kowalski to give notice to the proposed respondents and to invite them to make submissions before his Honour if they wished. On 10 March 2017, Law Claims assumed conduct on behalf of RJ Cole & Partners and Kowalski’s application was heard on 5 May 2017. Judgment was reserved. On 17 August 2017, Blue J delivered judgment in Attorney-General v Kowalski (No 6)[20] and granted section 39 permission (but in limited terms).
[20] [2017] SASC 122.
The proposed grounds of appeal
Although Kowalski wished to pursue a plethora of grounds of appeal, in Attorney-General v Kowalski (No 6),[21] Blue J found there were only two reasonably arguable grounds.
[21] [2017] SASC 122.
The first ground was that Judge Anderson erred in rejecting Kowalski’s case that RJ Cole & Partners was negligent by instituting and prosecuting a common law negligence action rather than a non-economic loss compensation claim under s 43 of the Workers Rehabilitation & Compensation Act 1986 (the section 43 case).[22]
[22] [2017] SASC 122, [138].
As to quantum concerning the first ground,[23] (although Kowalski wished to claim much more), Blue J found that “[t]he only head of damages which has sufficient prospects of success to justify the grant of permission under s 39 is the claim for recovery of the costs charged by RJ Cole & Partners in respect of the common law action”.[24] Blue J limited this to the amount of “$18,634.66 the subject of the March 1992 account”.[25]
[23] Judge Anderson did not assess quantum.
[24] [2017] SASC 122, [143].
[25] [2017] SASC 122, [140].
The second ground of appeal held to be reasonably arguable was that Judge Anderson erred in rejecting Kowalski’s case that RJ Cole & Partners were negligent by reason of inadequate trial preparation (the “inadequate trial preparation case”).[26] As to quantum here, his Honour found that the damages assessment would have been the same as that on the first ground.[27]
[26] [2017] SASC 122, [152].
[27] [2017] SASC 122, [155].
Accordingly, the Notice of Appeal in Action No. 444 of 2018 filed on 18 April 2018 (the 18 April 2018 Notice of Appeal) stated the grounds of appeal thus:
7.1Judge Anderson erred in not finding that RJ Cole & Partners were negligence in failing to advise the Appellant about the disadvantage of proceeding with a common law action for negligence compared to an assessment pursuant to section 43 of the Workers Rehabilitation & Compensation Act 1986 (South Australia).
7.2Judge Anderson erred in not finding that RJ Cole & Partners were negligent in not taking steps, before the trial in District Court action No. 2760 of 1990, to attempt to support the Appellants evidence.
Extension of time
We turn to the important matter of extension of time.
An initial question arises as to whether we are here dealing with an application for an extension of time within which either to initiate an appeal or to reinstate an appeal dismissed due to a failure to set it down for hearing. In Attorney-General v Kowalski (No 6), Blue J observed that “[t]here are indications pointing both ways whether the appeal was instituted insofar as it was required to be filed”.[28] His Honour later further observed:[29]
185. If the appeal was instituted notwithstanding the above matters, subrule 95.11(3) provided that, unless an appeal had been set down within six months from its institution, it lapsed by force of that rule. If this occurred, Mr Kowalski could seek an extension of time under that rule but he would have to first establish special circumstances. Alternatively, he could seek an extension of time under section 48 of the Limitation of Actions Act 1948 (SA) in which event he would have to establish that it was in the interests of justice that an extension of time be granted.[30]
186. If the appeal was not instituted, Mr Kowalski could file a fresh appeal but he would need to seek an extension of time in which to do so.
…
211. I return to the procedural question whether, if in principle section 39 permission to proceed should be granted, the permission should be for Mr Kowalski to apply to reinstate the 2002 appeal (if one was instituted) or to file a fresh notice of appeal or both. It is likely that, whichever procedural vehicle were adopted, essentially the same criteria would be applied and the result would be the same. In the circumstances, to avoid a potential procedural lacuna and to ensure that the Full Court can determine the correct procedural vehicle, it is appropriate to give section 39 permission to Mr Kowalski to file an interlocutory application in action 467 of 2002 seeking reinstatement of the appeal (if it is held that an appeal was instituted) and at the same time to file a fresh notice of appeal on the basis that it would be directed that both matters be heard and determined by the Full Court at the same time.
212. I will direct Mr Kowalski to bring forward a draft interlocutory application and draft notice of appeal confined as to grounds and relief sought in accordance with my reasons for judgment. [Emphasis added]
[28] [2017] SASC 122, [171].
[29] [2017] SASC 122.
[30] Calvaresi v Lawson (1995) 184 LSJS 147 at 153-154 per Lander J (with whom Cox and Perry JJ agreed).
We now turn to the “two alternative scenarios” referred to above.
The first scenario: an appeal was not instituted on 3 April 2002
The first scenario is that an appeal was not instituted on 3 April 2002. Here Kowalski would need to obtain an extension of time of about 16 years within which to file an appeal. Rule 117 of the Supreme Court Civil Rules 2006 (SCR) provides:
117—Power to make orders controlling conduct of litigation
(1) The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
…
(2) The Court may (for example) -
…
(b) extend or reduce the time for taking any step in a proceeding;
Thus, the test under SCR 117 is whether the Court considers it necessary to grant the extension of about 16 years “in the interests of justice”.
An alternative avenue under the first scenario might be an application under s 48 of the Limitation of Actions Act 1936 (LOA Act). Blue J referred to this provision and noted that here Kowalski would have to establish that it was “in the interests of justice” that an extension of time be granted.[31] Sections 48(3) and (3a) relevantly provide:
[31] [2017] SASC 122, [185]. See also Calvaresi v Lawson (1995) 184 LSJS 147, 153-154 (Lander J, with whom Cox and Perry JJ agreed).
(3) This section does not—
(a)apply to criminal proceedings; or
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a)A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a) it forms an essential element of the plaintiff's cause of action; or
(b) it would have major significance on an assessment of the plaintiff's loss.
However, Kowalski has not referred to s 48 or to its requirements. On the hearing, he made no attempt to satisfy these requirements and we cannot see how he could have. We therefore consider that, on the first of the two alternative scenarios, the most appropriate vehicle for Kowalski is SCR 117.
The second scenario: an appeal was filed on 3 April 2002 and dismissed six months later for failure to set it down
As to this second scenario, if Kowalski’s contention that he did file an appeal in April 2002 is accepted, it follows that he subsequently failed to set down the appeal within six months and consequently his appeal was automatically dismissed in October 2002 pursuant to the then applicable Supreme Court Rule 95.11(3). It provided thus:[32]
(a)Where an appeal has not been set down within six months from its institution, or from when the appellant first became entitled to set it down, whichever is the later, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired.
[32] Supreme Court Rules 1987 r 95.11(3).
The current Supreme Court Rule 296 provides:[33]
(1) If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by Supplementary Rules, another party may apply to the Court for permission to set the proceeding down for hearing or for an order dismissing the proceeding.
(2) Unless an appellate proceeding is set down for hearing within 6 months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses. Despite the dismissal of an appellate proceeding under this rule, the Court may, for special reasons, reinstate the appellate proceeding.
(3) If a proceeding lapses under subrule (2), all parties are to bear their own costs.
(4) The power to allow a longer time under subrule (2) may be exercised before or after the period of 6 months has elapsed.
[33] Supreme Court Civil Rules 2006.
As will be seen below, Kowalski did not address SCR 296 at all.
A distinction between statutory time limits and procedural rules of Court
There is, of course, a distinction between a statutory time limit within which to commence an appeal (on the one hand) and procedural rules of Court dealing with the progress of the hearing of the appeal after an appeal has been validly commenced (on the other hand). Thus in their joint judgment in Jackamarra v Krakouer Brennan and McHugh JJ stated:[34]
4. … In that class of case [an application for an extension of time to lodge an appeal], the respondent to the application has a vested right to retain the judgment[35], the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question – should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
[34] (1998) 195 CLR 516, 519-520. See also the judgment of Kirby J at 540.
[35] Vilenius v Heinegar (1962) 36 ALJR 200 at 201; Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 480.
The facts and circumstances in Jackamarra are important. Order 63 r 7(1) of the Rules of the Supreme Court 1971 (WA) provided that “[u]nless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal”. There was a preliminary argument concerning whether leave to appeal was required and the Full Court ruled in favour of the appellant that leave was not required (the competency argument). Upon resolution of that argument, on 10 November 1995, the twelve week period was extended by agreement to 6 February 1996. The further factual circumstances which then occurred are recounted by Gummow and Hayne JJ thus:[36]
23. On 10 November 1995, the day on which the Full Court gave judgment on the question of competency of the appeal, the solicitors for SGIC agreed to extend the time for entering the appeal for hearing until 6 February 1996. The steps to settle the contents of the appeal book were not taken before this extended time expired. The appellant's solicitor filed a draft appeal book index on 7 March 1996 and on 12 April 1996 served SGIC with a copy of that draft and notice of an appointment to settle it, fixed for 18 April 1996.
24. On 15 April 1996, SGIC filed and served a notice of motion to dismiss the appeal for want of prosecution. Three months later, on 15 July 1996, the plaintiff filed and served a notice of motion seeking an extension of time[1] within which to enter the appeal for hearing.
25. The delay in the prosecution of the appeal was entirely the fault of the appellant's then solicitor who did not attend to the matter because of pressure to attend to other matters conducted by the service which employed her.
[36] (1998) 195 CLR 516, 525.
In Jackamarra, a relatively short period of twelve weeks was specified. The consequence of breach was that the respondent could apply to a Judge for dismissal of the appeal and the appellant could apply for an extension of time. It can be seen that in Jackamarra the appeal was being progressed and the appellant herself was not responsible for what delay did occur.
By contrast, in the present case, the South Australian specified period of six months is more generous to an appellant but the consequences of breach of that requirement are much more stringent in that the appeal automatically lapses by dint of the effluxion of that period, subject only to it being reinstated in the Court’s discretion.
Here, particularly having regard to the fact that under each of the two scenarios a very long extension of time of 16 years is sought, it does appear that very much the same considerations apply to both scenarios. We agree with the statement of Blue J (reproduced above) that “[i]t is likely that, whichever procedural vehicle were adopted, essentially the same criteria would be applied and the result would be the same”.[37]
[37] Attorney-General v Kowalski [2017] SASC 122, [211]. We note that a view has been expressed that there is no specific requirement to establish “special reasons” for reinstatement under r 296(2). (See Raedel & Raedel v Shahin [2018] SASC 95 at [44]-[57].) It is unnecessary to explore that matter since we consider that in the present circumstances the correct exercise of a general discretion (ie not requiring special reasons to be established by the applicant) is that an application for reinstatement should be refused.
We will henceforth refer collectively to both alternative scenarios under the rubric “an extension of time”. We foreshadow that it is unnecessary to decide whether an appeal was or was not actually instituted here since we are of the view that an extension of time should be refused on either scenario.
Blue J’s position as to an extension of time
An important aspect of the judgment in Attorney-General v Kowalski (No 6) is that Blue J made it very plain to Kowalski that it was not for his Honour to decide whether an extension of time should be granted and that he would only decide whether the relatively low hurdle of it being “reasonably arguable” could be cleared. He stated:[38]
208. In determining whether to grant section 39 permission to Mr Kowalski to pursue an appeal, it is not my role to decide whether the appeal would succeed or whether Mr Kowalski would be granted the requisite extension of time. My role is to determine whether these matters are reasonably arguable.
209. My assessment is that Mr Kowalski has, on the face of it, sufficient prospects of success in challenging Judge Anderson’s rejection of his section 43 negligence case and inadequate trial preparation case on the merits to justify the grant of section 39 permission subject to the issue of an extension of time. [Emphasis added]
[38] [2017] SASC 122.
Mr Kowalski’s position as to extension of time
On the hearing of the application to this Court, Kowalski orally submitted:
I submit pursuant to s 45(3) of the Limitation of Action Act the appellant does not require an extension of time to lodge his notice of appeal in Supreme Court on the ground that he had the statutory and the legal right of 30 years to lodge his appeal, notice of appeal, see the facts which is found on pp.164-165 of this case book.
I also submit that I don’t need an extension of time to lodge my appeal on the grounds that are on 3/4/2002, the Supreme Court of South Australia formally accepted a notice of appeal dated 3/4/2002, therefore his notice of appeal was lodged within time, see Gerblich v – whatever it was.
It is stated in the 18 April 2018 Notice of Appeal that an extension of time is sought but no reasons are advanced in support thereof. However, in the ‘Appellants Summary of Argument’ his case is put in two alternative ways:[39]
6Does the Appellant require an extension of time?
6.1The appellant submits that, pursuant to s 45 (3) of the Limitation of Actions Act 1936 (SA), the appellant DOES NOT require an extension of time to lodge his Notice of Appeal in the Supreme Court on the ground that he had a statutory and a legal right of 30 years to lodge his Notice of Appeal. (See the facts which are found on pages 164 and 165 of his Case Book).[40]
6.2The appellant also submits that he DOES NOT require an extension of time to lodge his Notice of Appeal in the Supreme Court on the ground that on 3-4-2002, the Supreme Court of South Australia formally accepted a Notice of Appeal dated 3-4-2002, therefore his Notice of Appeal was lodged within time. (See the facts which are found on pages 56 and 67 of his Case Book and see Gerblich v).
[39] Stated to have been filed in Action No. 467 of 2002 on 22 May 2018.
[40] Paragraph [6.1] refers to “facts which are found on pages 164 and 165 of his Case Book”. However, page 164 is a file-note of someone (recorded only as “PAH/RT”) in relation to an attendance at the Industrial Court before Stanley J on 17 March 1993 concerning Mitsubishi filing heads of claim in some proceeding and is entirely irrelevant to the present matter; and page 164.1 consists only of a typewritten reproduction of s 45 of the Limitation Of Actions Act 1936 (with one underlining in pen, namely the words “thirty years” in the penultimate line).
An affidavit sworn by Kowalski on 28 February 2018 appears in the casebook. It was not tendered at the hearing but since he is an unrepresented litigant we will have regard to it in the present context. It states:
3I inform the Honourable Full Court that my fresh Notice of Appeal dated 27 February 2018 is a condensed version of the Notice of Appeal which I filed in Supreme Court action No. 467 of 200, on 3 April 2002, therefore, if I do require an extension of time to file my fresh Notice of Appeal dated 27 February 2018, the interests of justice clearly requires that the Honourable Full Court grants, to me, an extension of time to lodge my fresh Notice of Appeal dated 27 February 2018 on the ground that justice must be done in Supreme Court action No. 467 of 2002 and justice must also be seen to be done in Supreme Court action No. 467 of 2002.
4In view of the facts found above, I claim that I do not require an extension of time to file my fresh Notice of Appeal against Judge Anderson’s judgment and orders on the grounds which are found in par 12 of the Supreme Court’s judgment in Gerblich v Adplan Pty Ltd (No 3) [2011] SASC 225 (9-12-2011), however, if I do require an extension of time to file my fresh Notice of Appeal, the Honourable Full Court of the Supreme Court must grant, to me, an extension of time on the ground that it must make any order which it considers necessary for the proper conduct of these proceedings or otherwise in the interests of justice. See SCCR 2006 (SA) r 117. This includes the power to extend a time limit even though the relevant time limit fixed by the Rules has already expired.
4.1I am not a person who would have deliberately abandoned my legal rights or avenues of appeal against Judge Anderson’s perverted judgment and orders.
4.1.1In 2002, I informed the Respondent’s solicitors that I had lodged an appeal against Judge Anderson’s perverted judgment and orders, however, the Respondent’s DID NOT apply to the Supreme Court, in action No. 467 of 2002, to strike out my appeal for want of prosecution, therefore, the Respondents have not been prejudiced, in respect to my appeal against Judge Anderson’s perverted judgment and orders, in Supreme Court action No. 467 of 2002.
4.1.2After I had filed my appeal, in Supreme Court action No. 467 of 2002, I asked the Ombudsman to become involved in action No. 467 of 2002 in respect to my Supreme Court filing fees, however, the Ombudsman either did not become involved or he failed to resolve the issue of Supreme Court filing fees in respect to my Notice of Appeal in Supreme Court action No. 467 of 2002.
4.2Since I filed my Notice of Appeal dated 3 April 2002, in Supreme Court action No. 467 of 2002, I was being treated for a psychiatric illness and I was taking a cocktail of medication and I was involved in a large number of other legal actions and proceedings in a number of Courts and Tribunals.
4.2.1In view of the facts which are found par 4.2 above, this is the reason why my appeal against Judge Anderson’s perverted judgment and orders, in Supreme Court action No. 467 of 2002, slipped my attention for a period of time.
4.3In Supreme Court action No. 467 of 2002, I DID NOT intentional or contumeliously default in respect to my Notice of Appeal against Judge Anderson’s perverted judgment and orders, therefore, I should be granted an extension of time to appeal his judgment and orders, if I do require an extension of time to do so.
5In the alternative to the above, as a matter of law, I DO NOT require an extension of time to file my fresh Notice of Appeal dated 27 February 2018, in Supreme Court action No. 467 of 2002 on the ground that, pursuant to s45 of the Limitations of Actions Act, I have a period of 40 years to lodge my fresh Notice of Appeal against Judge Anderson’s perverted judgment and orders, therefore, I still have enough time to lodge my fresh Notice of Appeal against Judge Anderson’s perverted judgment and orders.
It appears that the only other items in the casebooks to which present reference might conceivably be made are (in chronological order) as follows.
First, a one page pre-trial conference report apparently filled out by the conference chairman on 22 August 1991 and which includes the handwritten comment: “P is now under psychiatric treatment and cannot at the moment give proper instructions”.
Secondly, an internal RJ Cole & Partners memorandum by ‘SJD’ (Dowd) dated 29 August 1991 stating that Kowalski had told Dowd that he had seen Dr Jagermann (a psychiatrist practising in South Australia) and that he had certified Kowalski off until 15 September 1991.
Thirdly, an internal RJ Cole & Partners memorandum by ‘SD’ (Dowd) dated 20 November 1991 concerning preparation for the back injury case and stating:
CURRENT CONDITION
I am currently absent from my employment.
There is a dispute between myself and Mitsubishi. That arose out of a claim I brought for weekly payments of income maintenance when I had time off work to have treatment at the hands of Mr Moss.
After having that time off work to attend at a Workcover meeting I was then called into the office at Mitsubishi and advised that I had tried to defraud Mitsubishi by incorrectly completing time sheets which indicated I was at work when in fact I was at Workcover.
I explained to Mitsubishi that I had not in any way attempted to defraud them and in fact everyone knew I was at the Workcover meeting and this was a ridiculous suggestion.
In the end I simply broke down.
Mr Karl Jagermann, a psychiatrist to whom I was referred by Dr Hughes, has been seeing me and I have also been examined by a Mr Scanlon in relation to the ongoing claim for income maintenance.
PRESENT SOCIAL CONDITION
At the moment I am particularly depressed and anxious.
…
CURRENT MEDICATION
I am currently taking 2 x 75 mgs of Prothiaden at night.
I am also taking 3 Buspar a day.
Fourthly, we note that the whole of the transcript of the trial before Judge Lee in December 1991 (in which Kowalski was represented by Mr Ward of counsel) formed the content of casebooks 3-A and 3-B. In evidence in chief, Kowalski gave no evidence of psychiatric disturbance or illness and no expert psychiatric evidence was called. In cross-examination of Kowalski on 10 December 1991 appears the following passage:
QYou continue to consult Dr Jagerman do you.
AI do.
QWe haven’t heard much about your emotional health in this case but is it the case that you have been feeling quite unwell in that regard ever since August.
OBJECTION Mr Ward objects on the grounds of relevance.
OBJECTION OVERRULED
QIs this the case, you had been feeling quite unwell in relation to your emotional health since August.
AI broke down in August, yes.
QHas there been any improvement, to your way of thinking, in that condition since.
AWell, it seems to improve and then I get more stress placed upon me and I even sort of – I was going backwards – back and forward.
QAs best as you can predict, are you envisaging, for example, being able to return to work by the Christmas break.
AWell, I know even going yesterday, I felt like a leper going in there.
QAs you see things, do you think it will be quite some time before your health improves in that regard.
AWell, I don’t know, I don’t know.
QBut you are not expecting to return to work within the next fortnight, are you.
AWell, I have got a certificate off to the end of the month.
QWhen is your next appointment with Dr Jagermann.
AOn Friday.
QWould you agree with the suggestion that since going work in August 1991, in trying to compare the effect of your back problem with your emotional problem, if I may use that label if I may, it is the emotional one that has been, to your mind, worse than the other one.
OBJECTION Mr Ward objects.
OBJECTION OVERRULED
QDo you understand the question.
ANo.
QYour perception as to which condition has seemed worse to you. Has there been any difference to your mind? between how you felt as a result of your back injury compared with how you felt as a result of these emotional problems.
AIt was worse with the back injury.
QDo you relate one as worse than the other or not.
AWell, the back injury was a lot more painful, the ?? are a lot more painful, the stress is – just the emotional side of it, and it sort of drains you. You can’t sleep.
HIS HONOUR
QDo I understand your case to be that but for this incident of the meeting in August of this year, you would still be working with Mitsubishi albeit with your back problem.
AI would still be, yes.
QIt was that incident which led to your leaving work remaining off work.
AThe break down, yes.
QIn August of this year.
AThat’s right.
Fifthly, an internal RJ Cole & Partners memorandum by ‘SJD’ (Dowd) dated 14 January 1992 concerning preparation for the back injury case and stating:
We discussed the involvement of the psychiatrist evidence and I explained to him that if Mr Scanlon was called to give evidence to say that his neurosis was amplifying his physical condition then it may be necessary to call Mr Jagermann to rebut that if indeed Mr Jagemann would be prepared to rebut it.
Sixthly, in the amended statement of claim in the professional negligence action dated 31 October 1996, there are assertions to the effect that the plaintiff had suffered a mental breakdown and was under the care of psychiatrists.
Seventhly, a seven line letter dated 12 May 2010 from a Dr Hamer (a GP) to a Mr Greg Dare (a psychiatrist practising in South Australia) stating:
Thank-you for seeing Kazamir Kowalski, a 62 year old man who has suffered from anxiety and depression since 1991. He is currently on luvox 400 mg daily. He has been seeing Dr Richard Thompkins for some years but is looking for a change. I would appreciate it if you could see him with a view to getting to know him and taking over his psychiatric management.
The above materials may be respectively assessed in the context of several mechanisms by which time limitations may be extended, to which we now turn.
Mr Kowalski’s application for an extension pursuant to Section 45 of the Limitation Of Actions Act 1936
Section 45 of the LOA Act provides thus:
45—Persons under legal disability
(1) Where the time for bringing an action or proceeding is limited by this Act, or any other Act or law, and the person who is entitled to bring the action or proceeding is under a legal disability, the time for bringing that action or proceeding shall, subject to subsection (3) of this section, be extended by the period or periods for which the disability exists or continues after the time at which the right to bring the action or proceeding arose.
(2) For the purposes of this section a person is under a legal disability in relation to an action or proceeding while he remains a child or while he is subject to a mental deficiency, disease or disorder by reason of which he is incapable of reasoning or acting rationally in relation to the action or proceeding that he is entitled to bring.
(3) No period of limitation shall be extended by this section to more than thirty years from the time at which the right to bring the action or proceeding arose.
This provision was not mentioned as a possibility by Blue J (with respect, for good and obvious reason) but, as appears above, Kowalski purported to rely primarily upon it at the hearing. However, no considered or cohesive case was put to justify an extension of time under s 45. Kowalski asserted from the bar table that he was under a disability and was therefore ipso facto within s 45; but he did not give or call any specific evidence in support of such an application. Most importantly, he did not adduce any expert medical evidence directed to the particular question of whether (and if so, when and for how long) he was “subject to a mental deficiency, disease or disorder by reason of which he is incapable of reasoning or acting rationally in relation to the action or proceeding that he is entitled to bring”.[41]
[41] Limitation of Actions Act 1936 s 45(2).
As for the scattered references in the casebooks referred to above, it is quite clear that mere assertions of past psychiatric problems in various contexts could not possibly satisfy the specific requirements of s 45 in the present circumstances. Kowalski’s attempted reliance of s 45 was entirely misconceived. We would refuse the application under s 45 of the LOA Act.
Mr Kowalski’s applications for an extension pursuant to either SCR 117 (first scenario) or SCR 296 (second scenario)
We will address Mr Kowalski’s applications for an extension pursuant to SCR 117 (first scenario) and alternatively SCR 296 (second scenario) by reference to (and in order of) the following topics:
1The common law approach to extension of time;
2An analogy with abuse of process and Anshun[42] principles;
2.1proceedings seeking to require RJ Cole & Partners to tax its costs concerning its appropriation of the amount of $18,634.66;
2.2 proceedings in the Federal Magistrates Court and the Federal Court;
2.3 private prosecution against Mr RJ Cole and others;
2.4 proceedings in the Industrial Relations Court;
3Broader community interest and case-flow management considerations.
[42] See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
1. The common law approach to applications to extend time
Australian courts have long emphasised the natural tension between the goal of finality of litigation and the goal of avoiding injustice. Rights of appeal favour the latter goal but they cannot rise above the limits of the statutory grant; and the time limit within which to appeal is an integral part of that grant.
The right to appeal from a judgment of a District Court Judge to the Supreme Court is conferred by s 43(1) of the District Court Act 1991 which provides that “[a] party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action”. As at 21 March 2002, the Rules of the Supreme Court referred to in s 43 stipulated a time limit of 14 days from delivery of the judgment.[43]
[43] The 14 day period had been operative for many years. A longer period of 21 days was later introduced by the Supreme Court Civil Rules 2006, which came into operation on 4 September 2006.
In an oft cited passage, McHugh J observed in 1990 in Gallo v Dawson:[44]
…the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … . When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … . It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted …. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. [Citations omitted]
[44] (1990) 93 ALR 479, 480-481.
In Gallo, the extension of time sought was some 16 months, itself a very substantial period. Examples of periods comparable to the presently requested extension of 16 years (not months) are usually found in the context of applications for an extension of time within which to bring a claim rather than an appeal but much the same considerations apply. Thus, in Brisbane South Regional Health Authority v Taylor, McHugh J stated:[45]
Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. [Citations omitted]
[45] (1996) 186 CLR 541, 551-552.
In similar vein, Dawson J stated:[46]
The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.
[46] (1996) 186 CLR 541, 544.
In Trevorrow v State Of South Australia (No 5), Gray J gathered together some guiding principles concerning the exercise of discretion in applications to extend time, all of which we take into account. His Honour stated:[47]
924. In Ulowski v Miller, Bray CJ observed that the discretion to extend time should not be fettered by any absolute or inflexible rules. However, Bray CJ went on to outline what he referred to as five paramount matters to be considered in the exercise of the discretion. Those factors are the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation. Bray CJ then went on to say:
I think the discretion [to extend time] should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
925. In Lovett v Le Gall, Bray CJ held that the following two considerations could be added to the list in Ulowski: the conduct of the plaintiff; and the nature, importance and circumstances surrounding the ascertainment of the new material facts.
926. In Forbes v Davies and Commonwealth of Australia, Kearney J agreed with Bray CJ as to the relevant factors to consider when contemplating an exercise of the discretion to extend time, and added a further factor to the list – the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed.
927. In McPhee v Blyth, Olsson J reaffirmed the view adopted by Legoe J in Luscombe v State of South Australia that the five factors outlined by Bray CJ in Ulowski were relevant to applications made pursuant to section 48 of the Limitation of Actions Act. These factors form the basis for any consideration of an application for an extension of time. An analysis of the circumstances of a matter relevant to these factors assists the Court to ascertain whether, in the interests of justice, the application for extension of time should be granted. [Citations omitted]
[47] (2007) 98 SASR 136, 328-329.
More recently, in the decision of the High Court in Prince Alfred College Incorporated v ADC, the plurality approved the approach taken in Brisbane South Regional Health Authority and stated (in the context of an application under the LOA Act for an extension of time within which to bring a claim):[48]
[48] (2016) 258 CLR 134, 164-167 (French CJ, Kiefel, Bell, Keane and Nettle JJ).
99. In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court's decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre‑conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'”.
100. Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.
…
105. … Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period. … [Citations omitted]
Analogies with abuse of process and Anshun[49] principles
[49] See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
In considering its exercise of discretion as to whether to grant an extension of time in a given case, a Court may take into account many factors. One such factor, or group of factors, is the availability of analogies with authorities concerning abuse of process principles, including re-litigation and Anshun principles.
Needless to say, a party resisting an application for an extension of time does not have to establish that the application actually constitutes an abuse of process so as to establish a right in a respondent to have proceedings stayed or dismissed. Rather, as exemplified in the present case, the Court here may take into account that Kowalski’s continuing behaviour over the relevant 16 year period is such that analogies to “abuse of process” particularly in the context of “re-litigation” principles and “Anshun principles” present a powerful set of considerations militating against the grant of an extension of time of some 16 years as sought by Kowalski.
Of course, abuse of process principles are themselves flexible. In Jago v District Court of New South Wales, Gaudron J stressed that the power of a court “to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands”.[50] Her Honour added that “at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand”.[51]
[50] (1989) 168 CLR 23, 74.
[51] (1989) 168 CLR 23, 74.
And in the High Court decision in Batistatos v Roads and Traffic Authority of NSW, the majority (Gleeson CJ, Gummow, Hayne and Crennan JJ) stated:[52]
63. … The plaintiff certainly has a "right" to institute a proceeding. But the defendant also has "rights". One is to plead in defence an available limitation defence. Another distinct "right" is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.
64. It is a long, and impermissible, step to deny the existence of what may be the countervailing right of a defendant by imputation to the legislature of an intent, not manifested in the statutory text, to require the court to give absolute priority to the exercise by the plaintiff within the limitation period of the right to initiate proceedings. The truth is that limitation periods operate by reference to temporal limits which are indifferent to the presence or absence of lapses of time which may merit the term "delay".
65. The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.
[52] (2006) 226 CLR 256, 280.
With respect, there is a very valuable consideration of what French J (as he then was) aptly referred to as “Relitigation as Abuse of Process” in Spalla v St George Motor Finance Ltd (No 6) which we consider is highly relevant to the present application. His Honour there observed under the heading “Relitigation as Abuse of Process”:[53]
[53] [2004] FCA 1699.
59. The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One form of such abuse is to invoke the procedures of the court to attempt to relitigate controversies which have already been decided by the court. The court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
60. The protection afforded the administration of justice by the general concept of abuse of process in this context subsumes that afforded by the specific doctrines of res judicata, issue estoppel and their Anshun extension. …
…
62. The breadth of abuse of process protection against attempted relitigation was considered in Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393):
‘... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.’
Their Honours cited Reichel v Magrath and Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362. They also adopted and approved the description of the relevant jurisdiction of superior courts given by Lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536):
‘... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’
The category of ‘right-thinking people’ is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative.
…
66. The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. As another Full Court said in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 (at 443):
‘An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel: see Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case.’
67. The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is ‘a general public interest in the same issue not being litigated over again’. …
Turning to the facts of the present case, it is critical to appreciate that long before Kowalski sought section 39 permission in 2017, he was well aware that the correct approach was to attempt to appeal directly against Judge Anderson’s March 2002 judgment – and that in any such attempt he would have to face the matter of extension of time as a serious issue.
On 20 November 2006, more than four years after delivery of Judge Anderson's March 2002 judgment, Kowalski attempted to attack that judgment by filing in District Court Action No. 957 of 1996 (the professional negligence action) an interlocutory summons seeking to set aside the judgment on the basis that his Honour had no jurisdiction by reason of s 54 of the 1986 Act. Crucially, there was (and is) no time limit on the power of a District Court Judge to set aside a previous order made in the District Court.[54] On 21 March 2007, Judge Shaw dismissed Kowalski’s application.
[54] District Court Civil Rules 2006 r 242.
On 27 May 2008, Kowalski filed in District Court Action No. 957 of 1996 a further interlocutory application, again seeking to set aside Judge Anderson’s judgment on the basis that his Honour had misapprehended the facts and misunderstood the law. On 13 June 2008, Master Norman in Action No. 957 of 1996 gave a direction to the Registrar under r 53(2) of the District Court Civil Rules 2006 (SA) (the 2006 District Court Rules) not to issue Kowalski’s May 2008 interlocutory application without leave of the Court having first been obtained.
On 20 June 2008, Kowalski filed in Action No. 957 of 1996 an interlocutory application seeking leave to file his 27 May 2008 application. On 4 September 2008, Master Norman in Action No. 957 of 1996 refused leave to Kowalski to file his application and supporting affidavit lodged on 27 May 2008 seeking to set aside Judge Anderson’s judgment on the basis that the proposed application was frivolous and vexatious.
Undeterred, on 5 September 2008, Kowalski filed a notice of appeal in Action No. 957 of 1996 against the decision of Master Norman. On 3 December 2008, District Court Judge Nicholson (as Nicholson J then was) in Action No. 957 of 1996 heard and dismissed that appeal and stated in his ex tempore judgment:
… The authorities bearing on the 1987 rule 84.12 and its broad equivalent 6 DCR 242 are clear that the discretion in a judge of this Court to vary or set aside a sealed judgment is to be exercised very sparingly particularly where, as here, (i) the judgment followed a trial on the merits; (ii) there has been significant delay since the entry of judgment and, (iii) there has already been an unsuccessful application pursuant to rule 84.12 heard and determined in 2002.
Furthermore and perhaps more importantly, rule 84.12 and its current equivalent has to be used sensitively bearing in mind that it has the capacity to subvert the usual appeal process. In this case Mr Kowalski enjoyed the usual rights to appeal from the judgment of the trial Judge delivered in 2002. I do not accept that Mr Kowalski’s inability to have the filing fee for an appeal in the Supreme Court waived meant that he was, as he submitted, prevented from exercising his right of appeal.
In the present case, it is apparent after hearing from Mr Kowalski that ultimately he wishes to have the trial Judge’s judgment, in effect, set aside. Given the many complaints raised by Mr Kowalski with respect to the findings of the trial Judge, it is likely that, ultimately, if he were to succeed with his proposed application, a retrial on the merits would be required. In these circumstances, the appropriate avenue ordinarily is for Mr Kowalski to attempt to appeal the judgment. I accept that Mr Kowalski is now well out of time. It would follow that Mr Kowalski would need to seek leave to appeal the judgment out of time.
It is, in my view, entirely inappropriate for a District Court judge to exercise any discretion that may be available under rule 84.12 or its current equivalent to set aside the judgment of another judge of this Court, following a trial on the merits, and either remit the matter for further hearing by the trial Judge (whom I note is no longer a judge of this Court) or to some other judge. For this reason alone Mr Kowalski’s proposed application is misconceived in my view and frivolous and vexatious.
A further consideration when considering whether or not to apply the discretion available in rule 84.12 or its current equivalent is the need to reach finality in this litigation.
All of the matters I have just referred to must be borne in mind when considering this appeal. I have read and considered the volume of materials put forward by Mr Kowalski and described as an appeal book and the 2002 decision of the trial Judge. I also have heard submissions from Mr Kowalski extending over approximately one hour. I have reached the dame decision as did the learned Master and for the same reasons as he delivered. Mr Kowalski is attempting to relitigate a trial which, apart from cost issues, was finalised over six years ago. In my view, Mr Kowalski’s claim that he has a legal and factual basis to reopen the claim brought against the defendant in this matter is weak, if not, untenable.
If I am wrong in this view I reiterate that an application under rule 84.12 or its 2006 equivalent is not, in my view, the correct way for Mr Kowalski to ventilate his concerns. In these circumstances, I agree that Mr Kowalski’s proposed application and for which leave is sought is frivolous and vexatious. The appeal is dismissed.
MR KOWALSKI: Thank you. Your Honour, will I have a copy of that judgment?
HIS HONOUR: When it is typed up I direct that a copy of the ex tempore judgment I have just delivered, as amended by me for grammar and other syntax, will be made available to you.
MR KOWALSKI: Thanks very much, thank you. Thank you for listening to me.
ADJOURNED 12.48 P.M. [Emphasis added]
More recently, in Aon Risk Services Australia Ltd v Australian National University (Aon),[80] the High Court strongly emphasised the weight to be given to a wider public interest. Of course, the context in Aon was late amendment and vacating a trial date, but much of what was said is both relevant and important here. Thus the plurality stated:
92. The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. …[81]
…
94. … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
95. The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in JL Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied “in extreme circumstances” to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
…
103. The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case. [Citations omitted]
…
111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
[80] (2009) 239 CLR 175.
[81] (2009) 239 CLR 175, 211 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
And French CJ said of JL Holdings:
6. That case arose out of an entirely different factual setting. However, to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative. …[82]
30 JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.[83]
[82] (2009) 239 CLR 175, 182.
[83] (2009) 239 CLR 175, 192.
Consideration of the present application(s) for an extension of time
The respondents opposed the granting of section 39 permission before Blue J on a number of bases, including that an extension of time should not be granted. Blue J explicitly stated in his judgment that the matter was for the Full Court to ultimately decide. In this Court, the respondents chose to abide by the decision of the Court on all issues, but that in no way amounted to consent to an extension of time. The granting of such an extension of time remains in the discretion of the Court and it was made plain to Kowalski by this Court at the hearing that this was a serious issue that he needed to address.
Of course, Kowalski did address the issue. He sought an extension of time of about 16 years and made the submissions reproduced above. But in doing so, he offered no real reason why that delay occurred and why he did not take his present proposed course a long time ago.
To be blunt, during the subject 16 year period Kowalski continually harassed the respondents with proceedings designed to set aside the judgment of Judge Anderson and with numerous proceedings designed to recover the same sum of $18,634.66 as is now sought here. All of those proceedings failed but they no doubt were of great expense, worry and inconvenience to the respondents. They have also been of great expense to the public when one considers the true cost of an hour, or a day, in Court having regard to the cost of time of Judges, numerous support staff and other expenses – and hence the reference to broader public policy considerations.
Factors militating against the granting of an extension of time include that:
-The extension of time sought (16 years) is very long;
-Kowalski has not advanced any good reason for that delay;
-Kowalski has made previous attempts to challenge the subject judgment without having to face an application for an extension of time in which to appeal, all of which have been unsuccessful;
-Kowalski has previously made numerous attempts to recover the same amount of the present quantum sought ($18,634.66) by other forms of litigation, all of which have been unsuccessful;
-Kowalski’s behaviour up to the present has had a deleterious impact upon the respondents in both mental and financial terms, the latter detriment likely to well exceed the present quantum of $18,634.66;
-The proposed appeal raises no matter of law or of public importance; and
-The appropriate use of finite Court resources and the fact that the amount now claimed of $18,634.66 is at the lower end of the scale of monetary judgments with which the Full Court would usually deal.
These considerations all apply to both of the “two scenarios”.
In the present case Blue J found that the two proposed grounds of appeal are “reasonably arguable”. However, having regard to the cumulative weight of the matters militating against an extension of time discussed above, we consider that even if the assessed prospects of success were significantly greater than “reasonably arguable” the granting of the very lengthy extension of time presently would not be justified. The present situation calls to mind the following further remarks of McHugh J in Gallo v Dawson:[84]
In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal "depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional". This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was that she decided to appeal. Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes, McInerney J. pointed out (at 263) that one object of fixing time under court rules is "to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations". When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a "vested right to retain the judgment". It would make a mockery of O.70, r.3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. [Emphasis added]
[84] (1990) 93 ALR 479, 481.
The holding of a re-trial would be unduly oppressive for the respondents
In our view, the totality of the preceding discussion is more than enough to require this Court to refuse the extension of time sought but we will add some brief remarks concerning the oppression of the respondents that would be associated with the holding of a re-trial of the professional negligence claim.
In referring to a re-trial, we note that the substantive order presently sought in the Notice of Appeal is that judgment be entered for the appellant against the respondents. However, while it is not unusual for an appeal Court when setting aside a verdict for the plaintiff (the person who had the onus of proof) to order that a verdict be substituted for the defendant (the person who did not have the onus of proof), it is unusual for an appeal Court when setting aside a verdict for the defendant to order that a verdict be substituted for the plaintiff as distinct from ordering a re-trial.[85] Of course, it is possible under modern law for a Court to do so, but the Courts still pay heed to the cautionary words of Starke J in Baird v Magriplis: “that authority will only be exerted where the evidence is such that only one possible verdict could reasonably be given on the evidence: it is a strong power and must be exercised with considerable caution”.[86]
[85] In such cases the appeal Court, having found appellable error requiring the verdict in favour of the defendant to be set aside (for whatever reason), may well not be confident that at a re-trial the plaintiff would necessarily be able to discharge his onus (and therefore a substitution of a verdict for the plaintiff may be inappropriate).
[86] (1925) 37 CLR 321, 334. And see: Hocking v Bell (1945) 71 CLR 430, 441 (Latham CJ); Conrad v The Chermside Hospitals Board [1982] Qd R 242, 251. For an earlier and no longer applicable ancestor of the distinction, see Dearman v Dearman (1908) 7 CLR 549, 553 (Griffith CJ).
In all of the circumstances here, we find that it is not reasonably arguable that Kowalski could succeed to the extent of having a verdict substituted in his favour. If Kowalski were to succeed at all, such success would be limited to an award of a re-trial and it therefore follows that the oppression to the respondents that would flow from a re-trial is to be taken into account when considering whether to grant the application.
The oppression to the respondents that would arise from the ordering of a re-trial is obvious for any number of reasons. One is that the original trial was scheduled for five days but lasted some nineteen days.[87] The transcript makes very plain that it was far longer than it ever needed to be due to the quixotic and bizarre behaviour of Kowalski (who appeared in person) throughout. As an example, Kowalski initially insisted that he would not give evidence but would prove his case by tendering many documents and calling the defendants as his witnesses. His professed reason for taking this unusual course was that he had had adverse findings of credit made against him in various jurisdictions and this course of action would prevent that occurring. This approach of course promoted general confusion and innumerable arguments. He nevertheless persisted with it until he finally realised that he would need to enter the witness box and did so as the last witness in the case. Judge Anderson later aptly observed in his judgment:
19. The Plaintiff also gave evidence. His evidence revealed how all consuming his battle with his employer and these Defendants has been for him these past several years. He was, in my view, quite unable to remain balanced in his approach to relevance and causation. He seemed to be of the view that the more documents he could tender the stronger his case would be. I am generally unable to accept his evidence in preference to that of any of those whom he called to support his case.
20. The issues raised by the Plaintiff took many days in the witness box and hundreds of pages of evidence. Even though the difficulties were pointed out to him, the Plaintiff insisted in attempting to prove his case by calling each of the Defendants except Mr Cole. Initially, he said that he did not intend to give evidence himself because of his experience in the past with adverse credibility findings. However, as the trial progressed he eventually realised that without his evidence he was in a difficult position and he ultimately entered the witness box.
[87] The transcript of the trial before Judge Anderson is 2,185 pages. There were 218 exhibits, some quite large with the largest being exhibit P89 which was the whole of the 389 page transcript of the back injury trial before Judge Lee.
Much time was spent with various conspiracy theories propounded by Kowalski. An emblematic passage occurred after Kowalski had repeatedly complained that he had supplied three black and white photographs to his solicitors but that Mr Ward, his counsel at the back injury trial, had tendered a different set of photographs; he asserted that this was positive evidence of a conspiracy between his own Barrister and his own solicitors to defeat his claim:
MR KOWALSKI: I supplied three photographs to the defendants in this action to tender as my evidence to support my claim. There were photographs tendered in evidence to disprove my claim.
HIS HONOUR: By whom?
MR KOWALSKI: By Mr Dowd and Mr Ward. This is why I said there was a conspiracy.
HIS HONOUR: That’s just ludicrous. …
Finally, a re-trial would no doubt again involve Kowalski appearing in person and would again involve not only the further great expenditure of time and money but also the ever increasing difficulty of conducting fair litigation long after the subject events. On reading transcript of the 2002 trial before Judge Anderson (which concerned events that had commenced in 1989 and had culminated in the trial before Judge Lee in 1992) it is quite apparent that this effect was then already well entrenched. Such is confirmed by Judge Anderson who stated in his judgment:
10. Before I commence that narrative I wish to say something of the witnesses. In this context it is significant that this trial was commenced, almost to the day, a decade after the Plaintiff’s common law action against the employer which is at the heart of the Plaintiff’s case.
11. Mr Dowd, Mr Harris and Mr Sim each gave evidence. With some exceptions, each was without an independent recollection of what occurred between themselves and the Plaintiff in their separate dealings with him because of the effluxion of time. They relied almost completely upon the documents, letters and memoranda which were created during the relevant period in giving their evidence. Often they were quite simply unable to recall as to particular matters.
12. Mr Ward of counsel gave evidence. He was counsel for the Plaintiff, briefed by Mr Dowd, and conducted the Plaintiff’s common law claim against the employer. Mr Ward had even less recollection than any of the Defendants as he was almost totally without documentation from which he might refresh his memory as to the events of late 1991 and early 1992.
13. The Plaintiff was extremely critical of each of these persons for their inability to have a more perfect recollection notwithstanding the passage of time. He suggested that it might show a conspiracy to not reveal what they knew or that each was committing perjury.
14. I am unable to agree with his criticism. In my opinion, each witness gave his evidence as best he could, having regard to the documents and other papers presented to him in the witness box. I am unable to be critical of any of their shortcomings of memory a decade on and I reject the Plaintiff’s criticism of them, his own witnesses, on this basis. There is no basis upon which a conspiracy between them could sensibly be inferred or that it might be concluded that any of them gave perjured evidence.
A further 16 years have elapsed since 2002 and were a re-trial to be ordered it would come to trial not before 2021. This very much calls to mind the words of McHugh J in Brisbane South Regional Health Authority v Taylor:[88]
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. [Emphasis added] [Citations omitted]
[88] (1996) 186 CLR 541, 551.
Conclusion and disposition
In all of the circumstances, we would refuse to extend time within which to file a Notice of Appeal and, in the alternative, we would refuse an extension of time to reinvigorate a previously dismissed appeal. As a consequence of such refusals, we would dismiss “the appeal”.
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