SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
In the Matter of TEMPORARY FILE NO LI 4/06
KOWALSKI v WORKERS COMPENSATION TRIBUNAL & ORS
[2006] SASC 253
Judgment of The Honourable Justice White
24 August 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Appellant prohibited from instituting proceedings against Mitsubishi Motors Australia Limited without leave of the court - Appeal from a decision by a master refusing leave to the appellant to institute judicial review proceedings against the Workers Compensation Tribunal of SA, and the President and a Deputy President of the Tribunal - whether proposed proceedings were "against" Mitsubishi - whether leave should be granted.
Held: that proposed proceedings would be an abuse of process - that the proposed proceedings are both frivolous and vexatious - appeal dismissed.
Supreme Court Act 1935 (SA), s 39, s 131; Health and Other Services (Compensation) Act 1995 (Cth), s 23; Supreme Court Rules 1987 (SA), r 98, r 102.09; Workers Compensation Tribunal Rules 1996, r 23; Workers Rehabilitation and Compensation Act 1986 (SA); Supreme Court (General Civil Procedure) Rules 1996 (Vic), r 56.01, referred to.
Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433; Kowalski v Layton [2006] SASC 28; Director of Public Prosecutions v Denysenko [1998] 1 VR 312; Perkins v Ellaz (SC (Vic) 7 October 1997, Hedigan J, unreported), considered.
KOWALSKI v WORKERS COMPENSATION TRIBUNAL & ORS
[2006] SASC 253Appeal from a Master
WHITE J: This is an appeal from a decision by a master by which he refused leave to the appellant to institute an action in this Court against the Workers Compensation Tribunal of South Australia, the President of the Tribunal (Senior Judge Jennings) and Deputy President Gilchrist. When it is necessary to refer to this group collectively, I will refer to them as “the proposed defendants”.
The Requirement for Leave
On 19 April 2005, a judge of this Court (Bleby J) made an order pursuant to s 39 of the Supreme Court Act 1935 (SA) in the following terms[1]:
1.The defendant be and is hereby prohibited from instituting further proceedings, whether civil or criminal, in a prescribed court as defined in s 39(6) Supreme Court Act 1935, against the plaintiff or any corporation related to the plaintiff or any present or former employee or agent of the plaintiff, without leave of the Court.
2.The following proceedings instituted by the defendant be stayed: [there followed reference to two particular proceedings]
3.For the purpose of this order a corporation related to the plaintiff means a corporation that is related to the plaintiff by virtue of s 50 of the Corporations Act 2001 (Cth).
The plaintiff referred to in the order was Mitsubishi Motors Australia Ltd (“Mitsubishi”). Relevantly for present purposes, the order prohibited the appellant from instituting proceedings “against” Mitsubishi without the leave of the court. The order was made because Bleby J was…
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CaseChat Overview and Summary
The legal issues before the court involved determining whether the proposed proceedings were "against" Mitsubishi and if they should be subject to the leave requirement, given that Mitsubishi was not directly named as a defendant. The court also had to assess whether the proceedings were frivolous and vexatious, and if the appellant had reasonable prospects of success. The court examined the nature of the appellant's interest in the proceedings and whether it necessitated the inclusion of Mitsubishi as a party. The appellant's submissions highlighted that Mitsubishi's interest in opposing the application for judicial review should be recognised, thus necessitating its inclusion as a defendant.
The court found that the proposed proceedings would inevitably require Mitsubishi to be joined as a party, given the appellant's stated interest in determining whether a judgment or order of the Workers Compensation Tribunal had "legally extinguished [Mitsubishi’s] statutory and legal liability" to him. The court concluded that the master's decision to refuse leave was correct. The proposed proceedings were deemed both frivolous and vexatious, with no reasonable prospects of success. The appellant's interest in challenging the settlement did not justify the institution of these proceedings, particularly given the extensive prior litigation between the parties. The appeal was dismissed, and the master's decision upheld.
The court ordered that the appeal be dismissed, affirming the master's decision to refuse leave for the institution of the proposed proceedings. The court's decision highlighted the need for any party with an interest in opposing the application for judicial review to be named as a defendant, ensuring that all relevant parties are appropriately involved in the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In the third of the letters, the appellant drew the Tribunal’s attention to r 23 of the Workers Compensation Tribunal Rules 1996 which provides for the registration of compensation settlements in the following terms:REGISTRATION OF SETTLEMENTS(1)If the parties agree as to the payment of a lump sum by way of compensation under the Act or if a compensating authority has made a determination of a worker’s entitlement to a lump sum payment of compensation and the time for seeking a review of the determination has expired, that agreement or that determination must be registered as provided for herein.(2)In the case of an agreement, the agreement must be in accordance with Form 5 and must include full particulars of all relevant parties and if the agreement includes an allowance for costs and disbursements, the amount so allowed must be specified in the agreement.(3)In the case of a determination of a lump sum payment by a compensating authority a copy must be filed with the Registrar together with a statement containing full particulars of all relevant parties. The appellant asserts that Mitsubishi was obliged by r 23 to register in the Tribunal the agreement which it had made with him in October 1998. I am unable to determine presently whether r 23 has any relevance to the settlement agreement which the appellant reached with Mitsubishi in October 1998.The Proposed Proceedings and the Requirement for Leave As already noted, the master took the view that the order made by Bleby J on 19 April 2006 applied to the proposed proceedings, even though neither Mitsubishi, nor any corporation related to it, nor any present or former employee or agent of it, was a proposed defendant. He held, in effect, that the proposed proceedings were “against” Mitsubishi because it would need to be joined as a party to the proceedings. The master said, however, that in the alternative he would have applied r 102.09, so that the same issues arose. The master was correct, in my opinion, in holding that Mitsubishi should be made a party to the proceedings (if they are instituted). It is clearly a party “interested” in the proceedings. Any doubt about that is removed by the appellant’s submissions on appeal (both oral and written) to the effect that his own interest in the proposed proceedings is to determine whether a judgment or order of the Workers Compensation Tribunal has “legally extinguished [Mitsubishi’s] statutory and legal liability” to him under the Workers Rehabilitation and Compensation Act 1986 (SA) (“WRCA”). Whether that interest is in fact capable of being advanced by the proposed proceedings need not be considered. It is sufficient to note that that is the interest asserted by the appellant. Mitsubishi must have a corresponding interest. Any person having an interest to oppose the application for judicial review should be named as a defendant to the application.[6] Accordingly, Mitsubishi should have been named as a defendant to the proposed proceedings.[6] Director of Public Prosecutions v Denysenko [1998] 1 VR 312 at 314; Perkins v Ellaz (SC (Vic) 7 October 1997, Hedigan J, unreported). Both these cases were decided in a context which included r 56.01(2) of the Victorian Supreme Court (General Civil Procedure) Rules 1996 (which requires any person having an interest to oppose the claim to be named as a defendant).