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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kowalski v Workers Compensation Tribunal

Details

AGLC: Kowalski v Workers Compensation Tribunal [2006] SASC 253
Case: [2006] SASC 253
Decision Date: 24 August 2006

CaseChat Overview and Summary

In the case of Kowalski v Workers Compensation Tribunal, the appellant sought leave to institute judicial review proceedings against the Workers Compensation Tribunal of South Australia, and the President and a Deputy President of the Tribunal. The appellant, a former employee of Mitsubishi Motors Australia Limited, aimed to challenge a settlement reached between himself and Mitsubishi in October 1998, alleging that Mitsubishi failed to comply with certain statutory obligations in relation to that settlement. The court considered whether the proposed proceedings were "against" Mitsubishi and if leave should be granted for their institution. The master had previously refused leave, deeming the proposed proceedings an abuse of process, frivolous, and vexatious.

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

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.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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.

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).