Kowalski v Workers Compensation Tribunal - [2006] SASC 253

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 253
Appeal 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 satisfied that the appellant had persistently instituted vexatious proceedings.
[1] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.
An appeal against the order of Bleby J was dismissed by the Full Court on 22 November 2005.[2]
[2] Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433.
Mitsubishi is not named as a defendant in the proposed proceedings. The relief sought by the plaintiff will, however, affect the interests of Mitsubishi. In the proposed proceedings, the appellant will seek an “order, declaration or a writ of mandamus” requiring the proposed defendants to “perform their public, statutory and legal duty” to provide him with a copy of “the Workers Compensation Tribunal judgment to the settlement of my claims” and to “inform Medicare Australia and the Health Insurance Commission that [Mitsubishi], its servants and its agents, have deliberately and consciously failed to comply with s 23 of the Health and Other Services (Compensation) Act 1995 (Cth)”.
The full terms of the orders sought in the proceedings by the appellant are:
1.An order, declaration or a writ of mandamus that the Workers Compensation Tribunal of South Australia, President Judge Jennings and Deputy President Judge Gilchrist be compelled to perform their public, statutory and legal duty according to law and provide me with a copy of the Workers Compensation Tribunal judgment to the settlement of my claims for compensation so that I can forward a copy to Mr Bryson O’Malley, National Manager, Compensation Recovery program, Medicare Australia.
2.An order, declaration or a writ of mandamus that the Workers Compensation Tribunal of South Australia, president Judge Jennings and Deputy President Judge Gilchrist be compelled to perform their public, statutory and legal duty according to law and inform Medicare Australia and the Health Insurance Commission that MMAL, its servants and its agents have deliberately and consciously failed to comply with s 23 of the Health and Other Services Compensation Act 1995 (Cth), although, they have a statutory and a legal obligation to do so on the ground that as a matter of law they cannot aid wrong doers.
The Application for Leave
On 22 March 2006 the appellant applied “for leave to serve” the proposed proceeding. His affidavit indicated that that application was made pursuant to s 39 of the Supreme Court Act1935. That indicates a misapprehension by the appellant. Section 39 of the Supreme Court Act does not itself require leave to institute or to serve proceedings. Rather, it authorises the Court to make an order requiring that proceedings should not be instituted without leave. The requirement for leave to “serve” in respect of proceedings by way of judicial review arises from r 98 of the Supreme Court Rules 1987, but such leave can only be given in respect of proceedings properly instituted after taking account of any order made pursuant to s 39.[3]
[3] Kowalski v Layton [2006] SASC 28.
The master treated the appellant’s application as an application for leave to institute the proceedings. He refused that leave. The master took the view that the order of Bleby J made on 19 April 2005 extended to the proposed proceedings because it was inevitable that Mitsubishi would need to be joined as a party. The master said that even if he was incorrect in that view, he considered that r 102.09 applied to the proposed proceedings so that leave would be required. Rule 102.09 provides:
If any summons, application, or document filed for the purposes of an appeal which is presented for filing or issue appears to the Registrar to be an abuse of process of the Court, or a frivolous or vexatious proceeding, or contains scandalous or indecent material the Registrar shall seek the direction of the Court which may direct him to file or issue it, or to refuse to file or issue it without the leave of the Court first having been obtained by the party seeking to file or issue it.
Insofar as the proposed proceedings sought declarations and judicial review, leave was refused because the appellant did not, in the master’s view, have locus standi in the matter.
Insofar as the appellant sought orders other than judicial review or declaratory relief, the master took the view that this Court did not have jurisdiction to make the orders sought. Hence, because the proposed proceedings would inevitably fail, the master refused leave for the institution of the proceedings.
Evidence on the Appeal
In addition to his affidavit sworn 22 March 2006, the appellant sought to rely on a bundle of material provided under cover of a letter to this Court dated 5 July 2006. I received that material for the purposes of the appeal. The appellant also sought to rely on an affidavit sworn by him on 24 July 2006. I indicated at the hearing that I would reserve consideration of whether or not that affidavit would be received for the purposes of the appeal. Having now considered it, I decline to receive the affidavit sworn 24 July 2006. In some respects it is repetitive of material already provided and in other respects the material contained in it is irrelevant to the issues which arise on the appeal.
Background Circumstances
The appellant was formerly an employee of Mitsubishi. There has been extensive litigation between the appellant and Mitsubishi in relation to compensation claims made by him. Much of this litigation is reviewed in the decision of Bleby J delivered on 19 April 2005.[4]
[4] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.
In October 1998 a settlement of the appellant’s various claims was reached. The Workers Compensation Tribunal, constituted by Gilchrist DP, was informed of the settlement on 28 October 1998. The transcript of the hearing on that day shows that by the consent of both the appellant and of Mitsubishi (represented by its solicitor, Mr Bonig) all the notices of dispute (apart from one matter) filed in the Tribunal, and all other proceedings, were dismissed. The transcript also shows that the actual terms of the settlement were not communicated to the Tribunal, and that various steps agreed upon by the parties were to be taken to give effect to the settlement.
Since October 1998 the appellant has sought, in various ways, to impeach the settlement, but it is not necessary for present purposes to recount the detail of that.
It seems that on 28 December 2005, the appellant wrote to the Hon Joe Hockey MP, the Minister for Human Services, making allegations of breaches by Mitsubishi of the Health and Other Services (Compensation) Act 1995 (Cth) (“HOSC Act”) in relation to the settlement in 1998.
The HOSC Act requires a compensation payer (a notifiable person) to advise Medicare Australia within a prescribed period of the payment of compensation (of an amount greater than a prescribed minimum) in respect of injury.[5] As I understand it, the appellant’s allegation is that Mitsubishi did not give such advice in respect of a portion of the payment made to him as part of the settlement.
[5] Health and Other Services (Compensation) Act 1995 (Cth), ss 23, 38.
By letter dated 2 February 2006, a manager within Medicare responded on behalf of the Minister and concluded her letter by saying the following:
If you wish to have Medicare Australia review this matter, please forward relevant supporting material, such as a document showing evidence of settlement or judgment to [a name and address was provided].
The receipt of that letter prompted the appellant to write to Senior Judge Jennings and to McCouaig DP at the Workers Compensation Tribunal on 8 February 2006 in the following terms:
I inform you and I put on record that in a letter from Medicare Australia to me, dated 2 February 2006, I was asked to provide Medicare’s National Manager, Compensation Recovery Program with a copy of the Heads of Agreement between MMAL, my wife and myself, dated 27 October 1998, and a copy of the judgment to the settlement of my claims for compensation on the ground that prior to the Health and Other Services (Compensation) Legislation Amendment Bill 2001 came into operation Mitsubishi Motors Australia Limited had a statutory and a legal obligation to report my October 1998 settlement for compensation and every other workers 1998 settlement for compensation to the HIC, however, MMAL has deliberately and consciously failed to do so.
In view of the above, I formally request that you provide me with a copy of the WCT judgment to the settlement of my claims for compensation.
This letter misstated the effect of the Medicare letter of 2 February 2006 (a copy of which was not provided to the Tribunal) but that can be put to one side. What is apparent is that the appellant requested “a copy of the WCT judgment to the settlement of my claims for compensation”.
It appears that there has been further correspondence by the appellant to the Tribunal in February and March 2006 but not all of that correspondence has been provided to this Court. By letter dated 6 March 2006, the Deputy Registrar of the Tribunal said:
Please find enclosed herewith a copy of the transcript of proceedings before Deputy Present Judge Gilchrist on 28^th October 1998 – being the material requested in your facsimile dated 15^th February 2006.
The transcript referred to in that letter is the transcript to which reference was made above.
I also note that by letter to the appellant dated 29 March 2006 the Deputy Registrar of the Tribunal said (with reference to a facsimile from the appellant dated 7 March 2006):
In the above facsimile you mentioned that Medicare Australia is seeking certain specific information from yourself regarding your Workers Compensation claims against Mitsubishi Motors Australia Limited. To assist us to clearly identify the material requested, could you please forward a copy of the letter (dated 2/2/06) that you received from Medicare.
Alternatively, you could request Medicare to write directly to the Tribunal stipulating the details they want. Upon replying to any such correspondence from Medicare, the Tribunal will also send you a copy of the material provided to them for your personal records.
Please contact me on the above telephone number should you have any enquiry.
By the time this letter was sent, the appellant had already made his application to this Court in respect of the proposed proceedings.
The appellant did write to the Workers Compensation Tribunal on 30 March 2006. In fact he wrote three letters, the second and third of which contained a substantial amount of repetition of the first. In the first letter, the appellant asserted a failure by the Tribunal to respond to correspondence from him dated 8 March 2006, repeated his allegations about wrongdoing by Mitsubishi, repeated allegations of failures by the Workers Compensation Tribunal to take action against Mitsubishi (which allegations had also been made in earlier correspondence), and provided to the Tribunal a copy of the “Statement of Claim/Orders sought” which he said (wrongly) had been “filed” in the Supreme Court.
In the second of his letters dated 30 March 2006 the appellant said:
The information that Medicare Australia is seeking from me is a copy of “… relevant support material, such as a document showing evidence of settlement or judgment …” as per the Notice of Settlement for Mr Steven Paul Kowalski which is attached.
Steven Paul Kowalski is a relative of the appellant. The Notice attached to this second letter was in the form which a compensation payer uses to notify the Health Insurance Commission of a compensation judgment or settlement. There is no reason to suppose that the Workers Compensation Tribunal has ever had such a Notice, or a copy of it, in relation to the appellant. In the ordinary course of events, such a Notice would not be provided to it.
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).
If Mitsubishi had been named as the defendant then the proposed proceedings would, in my opinion, be properly characterised as proceedings “against” Mitsubishi in the sense in which that expression is used in the order made by Bleby J. That would be so even though no relief is sought directly against Mitsubishi. It is sufficient, in my opinion, that the appellant seeks an order which is adverse to Mitsubishi in relation to the claim or claims which he has previously made. However, as that is not the way in which the appellant has proceeded there may be some doubt whether the proposed proceeding can, while Mitsubishi is not a proposed defendant, be said to be “against” Mitsubishi. That is so even if Mitsubishi is likely later to be joined to the proceedings. That doubt exists even though the appellant did not contend, on the appeal, that the master was incorrect in regarding the proposed proceedings as proceedings to which the order of Bleby J applied.
Because of that doubt I consider that the matter should be addressed, as it was by the master, by an application of r 102.09 of the Supreme Court Rules 1987. By that rule, the court may direct the Registrar to refuse the filing or issue of a summons without the plaintiff first having obtained the leave the court to do so, in circumstances where the proposed proceeding is an abuse of process or is frivolous or vexatious. It was open to the master to exercise the power contained in that rule, even though there had been no specific referral by the Registrar, pursuant to that rule, of the proposed proceeding to the master.
Abuse of Process

It is not to be supposed that the effect of the order of Bleby J can be circumvented by the simple stratagem of instituting proceedings to which Mitsubishi should be named as a defendant, without so naming it, and then later applying for, or allowing, Mitsubishi to be joined as a party to the proceedings. If it were otherwise, a number of undesirable consequences would result. It would mean that compliance with the order of the court made by Bleby J could be avoided by non-compliance with some other procedural requirement relating to the particular proceeding, namely, by not joining to the proceeding all persons with a proper interest in it. It could also result in a substantial duplication of proceedings in the court. If Mitsubishi, once joined, was to seek pursuant to s 39 a stay of the proceedings, it may have to prove all over again the matters canvassed before Bleby J which led to his order on 19 April 2005.
In my opinion it is an abuse of the process of the court for a litigant to seek to issue proceedings without leave, when leave would, by an order of the court, be required for the institution of those proceedings if a person who is a proper party, had been named as a defendant. That is especially so if the purpose of the litigant, in instituting the proceedings without naming a proper party as a defendant, was to circumvent the court’s order. But even absent that purpose, the proceedings would, in my opinion, be an abuse of process. That means that I do not have to decide whether or not the actual purpose of the appellant in issuing the proposed proceedings without naming Mitsubishi as a defendant was to avoid the operation of the order of Bleby J. In fairness to the appellant, I do note his submission on the appeal that he was not aware that Mitsubishi should have been named as a defendant to the proposed proceedings.
First Claim: Frivolous and Vexatious
In case I am wrong in the conclusion that the proposed proceedings in their present form are an abuse of process, I will consider whether the first order sought in the proposed proceeding is also frivolous and vexatious for the purpose of r 102.09. As already noted, the first order that the appellant seeks is an order requiring the proposed defendants to “perform their public, statutory and legal” duty so as to provide him with a copy of the Workers Compensation Tribunal judgment concerning the settlement of his claims.
It is not clear whether a duty of the kind postulated does exist. But even if a duty of the kind which the appellant asserts does exist[7] the material relied upon by the appellant does not indicate any refusal by the Workers Compensation Tribunal to perform it. On the contrary, the Tribunal has attempted to comply with the appellant’s requests. I refer to its correspondence dated 6 March and 29 March 2006 respectively, quoted above.
[7] There does not appear to be an equivalent in the WRCA or in the Workers Compensation Rules to Supreme Court Act 1935 (SA), s 131.
Furthermore, it is quite understandable that the Tribunal should have some puzzlement about the “judgment” to which the appellant refers. It is quite apparent that the Tribunal did not give a judgment (in the sense of a decision with reasons following a hearing) which “settled” the appellant’s claims against Mitsubishi. The transcript of 28 October 1998 shows that the Tribunal was asked to, and did, make orders by consent dismissing certain notices of dispute and other proceedings. The appellant has been provided with the transcript containing the orders which were made to that effect.
The appellant considers that the transcript of 28 October 1998 shows that Gilchrist DP referred the appellant’s various matters into the suspense list. It is true that Gilchrist DP mentioned that as one course of action which was open to him. The remainder of the transcript indicates, however, that Gilchrist DP did not proceed in that way and that he made orders, on 28 October 1998, dismissing the various notices of dispute and other proceeding then before the Tribunal. So far as I can tell, there is nothing in the WRCA, or in the Workers Compensation Tribunal Rules 1996, providing for the drawing up and entering of formal orders. But if, contrary to that understanding of the matter, the orders of dismissal were drawn up formally and entered, I expect that the Tribunal would provide a copy of them to the appellant quite readily upon a request from him to do so. It would not need an order of this Court in declaratory or judicial review proceedings to require it to do so.
The Tribunal has said expressly that it would be assisted by a more precise identification by the appellant of the document which he seeks. It has invited the appellant to provide it with a copy of the letter from Medicare Australia with a view to identifying the documentation sought more precisely. It has also invited the appellant to have Medicare Australia contact it directly to indicate the material which it seeks. This indicates that the Tribunal is not refusing to perform the “duty” which the appellant imputes to it. It indicates that the Tribunal is willing, once it has had identified to it precisely what it is that the appellant seeks, to take reasonable steps to comply with his request. The proposed proceedings appear therefore to be quite unnecessary. There is certainly no need for the time and resources of this Court to be expended in addressing the complaint of the appellant about the production of a document to him.
Further still, the appellant has in his own possession a signed copy of the written terms of agreement (entitled “Heads of Agreement”) entered into between Mitsubishi and himself on 27 October 1998 to which effect was being given by the orders made on 28 October 1998. He must thereby be aware of the terms of the settlement which he reached with Mitsubishi, and now is able, if he chooses, to provide Medicare with a copy.
The appellant’s reliance on r 23 of the Workers Compensation Tribunal Rules does not take the matter any further. The appellant represented himself at the time of the Workers Compensation settlement and the hearing in the Tribunal on 28 October 1998. He must be aware whether any agreement of the kind to which r 23 refers was prepared. If the only agreement signed by him is the Heads of Agreement, then he already has a copy of it. Absent a belief by the appellant that there was in fact some other agreement signed by the parties, there is little point in asking the Tribunal for a copy. It also seems to me that there would be little point in this Court making an order requiring the Tribunal to produce to the appellant a copy of a document which may not even exist.
In short, the relief sought by the appellant in paragraph 1 of the proposed proceedings appears to be quite unnecessary and inappropriate. I consider that in those circumstances it can quite reasonably be described as frivolous.
The Second Form of Relief
I turn to the second order which the appellant seeks in the proposed proceedings. As already noted, the appellant seeks an order that the Workers Compensation Tribunal “inform Medicare Australia and the Health Insurance Commission that [Mitsubishi], its servants and its agents have deliberately and consciously failed to comply with s 23 of the Health and Other Services (Compensation) Act 1995 (Cth)”.
In these reasons, I am not to be understood as expressing any view, one way or the other, as to whether Mitsubishi has failed to comply in any way with any obligation arising under s 23 of the HOSC Act, let alone the character of any such failure.
The appellant has not pointed to any statutory provision or common law principle said to give rise to the duty of the Tribunal to which he refers. I am not aware of any principle which could have the effect of requiring the Tribunal to inform Medicare of the matters alleged by the appellant. With all respect to him, the appellant’s claim appears to be misconceived. As already noted, the duty under the HOSC Act is imposed on the compensation payer (the notifiable person) to inform Medicare Australia when a judgment or settlement is made.[8] Ordinarily the Tribunal would have no information at all as to whether a compensation payer had complied with its reporting obligation to Medicare. There is no obligation under the HOSC Act for a compensation payer, such as Mitsubishi, to inform a court or tribunal such as the Workers Compensation Tribunal of the actions which it has taken under the HOSC Act in respect of a settlement or a judgment.
[8] Health and Other Services (Compensation) Act 1995 (Cth), s 23.
It is not necessary to recite authority regarding the circumstances in which declaratory orders, and orders in the nature of mandamus are issued. It is sufficient to say that the appellant has not shown any reasonable basis at all upon which this Court might make the orders sought in paragraph 2 of the proposed summons.
The submissions of the appellant on the appeal went beyond what was required for the consideration of the appeal. I have not thought it necessary to address all of the appellant’s submissions.
Conclusion
I conclude therefore that quite apart from the issue of abuse of process, the proposed proceedings are both frivolous and vexatious. The appellant has no reasonable prospects of success. The time and resources of this Court, of the proposed defendants and of Mitsubishi should not have to be expended in dealing with this claim.
In my opinion the decision of the master was correct. The appeal is dismissed.