Kowalski v Sim & Ors

Case [2019] SASCFC 96

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,…

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Kowalski v Sim & Ors [2019] SASCFC 96
Case
[2019] SASCFC 96
Decision Date

CaseChat Overview and Summary

Kowalski applied to the Full Court of the Supreme Court of South Australia for an extension of time to appeal against a District Court judgment dismissing his professional negligence claim against Sim & Ors. The underlying dispute concerned Kowalski's assertion that his former solicitors, RJ Cole & Partners, had been negligent in their conduct of a prior common law damages action for a back injury sustained in 1989. That initial claim had been dismissed by the District Court in 1992.

The primary legal issues before the Full Court were whether to grant an extension of time for Kowalski to file a notice of appeal, and if so, whether to allow the appeal itself. This involved considering the significant delay of approximately 16 years since the District Court judgment in 2002, and the principles governing the exercise of discretion to extend time for appeal, particularly in light of the rationales for limitation periods.

The Court reasoned that the extensive delay was a critical factor. It referred to the policy behind limitation periods, which is to prevent the deterioration of justice over time due to the loss of evidence or the fading of memory, as articulated in *Brisbane South Regional Health Authority v Taylor*. The Court noted that a further trial, if ordered, would not commence for many years, exacerbating these concerns. Furthermore, the Court acknowledged that Kowalski had previously been declared a vexatious litigant, which weighed against granting an indulgence such as an extension of time.

Consequently, the Court refused to extend the time within which Kowalski could file a notice of appeal. In the alternative, it also refused an extension of time to reinvigorate a previously dismissed appeal. As a result, the Court dismissed the purported appeal.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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”.

Ratio Decidendi

Legal Principle Established

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 proceedings58. 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.