Mitsubishi Motors Australia Limited v Kowalski - [2019] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MITSUBISHI MOTORS AUSTRALIA LIMITED v KOWALSKI
[2019] SASCFC 95
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Parker)
9 August 2019
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - ATTEMPTS TO RELITIGATE
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION
Appeal against the decision of a single Judge of the Supreme Court giving permission pursuant to section 39 of the Supreme Court Act 1935 (SA) (SCA) to bring an application in the South Australian Employment Tribunal (SAET) to set aside three decisions of the South Australian Workers Compensation Tribunal (SAWCT).
The respondent is a vexatious litigant. In January 2014, an order was made pursuant to section 39 of the SCA prohibiting Mr Kowalski from instituting proceedings against Mitsubishi Motors Australia Limited (MMAL) without prior permission of the Court.
In October 1998, MMAL and Mr Kowalski entered into a mediation and settled all existing and future claims between the parties under a Heads of Agreement (HoA). General terms of the settlement included payment by MMAL to Mr Kowalski, the discontinuance of subsisting proceedings and an agreement that Mr Kowalski not initiate future proceedings in respect of workers compensation and related matters. Over the course of the mediation there were several iterations of the HoA. The final version differed somewhat to the initial version, in that one of the payments was described as an ex gratia payment and references to the words ‘income maintenance and medical expenses’ was omitted in respect of another clause.
Following the execution of the HoA, determinations were made in the SAWCT by consent dismissing certain compensation claims by Mr Kowalski pursuant to that settlement.
Subsequently, Mr Kowalski applied to set aside or appealed against the consent determinations on the ground, inter alia, that parts of the HoA were invalid pursuant to section 119 of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA). He also brought fresh claims for compensation. These applications and fresh claims were ultimately dismissed by the SAWCT.
Approximately 15 years after the relevant applications were dismissed, following various attempts to challenge the decisions, Mr Kowalski sought and was granted section 39 permission to apply to SAET to set aside the judgments, citing that the HoA was executed non est factum because he was not made aware of the changes in the final version and that these differences were not brought to the attention of the SAWCT and would have affected the Tribunal’s view in respect of the HoA’s validity.
MMAL sought permission to appeal against the section 39 permission, contending that Mr Kowalski was seeking to re-litigate issues already determined, being fully aware that the changes to the HoA did not contravene section 119 of the WRCA. Mr Kowalski submitted that no appeal lied against a section 39 permission and alternatively that MMAL had no standing to appeal. Permission was refused.
Held, allowing the appeal:
1. A section 39 permission is a judgment or order within the meaning of section 50 of the Supreme Court Act 1935 (SA).
2. The appellant has standing to appeal the section 39 permission as a person aggrieved.
3. It is not arguable that it is inconsistent with section 119 of the WRCA to agree to compromise a claim under the WRCA by consent.
4. It is not arguable that the executed HoA was non est factum.
5. The proposed section 88H proceedings were an abuse of process in that the proceedings were designed to re-litigate issues previously decided.
Workers Rehabilitation and Compensation Act 1986 (SA) s 88H, s 97, s 97A, s 97B, s 119; Supreme Court Act 1935 (SA) s 39, s 50, referred to.
Kowalski v Mitsubishi Motors Staff Superannuation Fund Pty Ltd [2006] SASC 159; Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44; Workers Rehabilitation & Compensation Corporation v JR Engineering Services Ltd & Ors [1995] SASC 4992; Clone v Players Pty Ltd (in liq) (2018) 92 ALJR 399; Kowalski v Mitsubishi Motors Australia Ltd [2005] SASC 433, applied.
Attorney-General (SA) v Kowalski (No 7) [2018] SASC 62, not followed.
Kowalski v Sim and Others [2019] SASCFC …; AG v Kowalski (Ruling 3) 24 April 2017; Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2017] SASCFC 175; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Attorney-General v Kowalski [2014] SASC 1, discussed.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76; Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48; Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57, considered.

MITSUBISHI MOTORS AUSTRALIA LIMITED v KOWALSKI
[2019] SASCFC 95
Full Court: Kourakis CJ, Peek and Parker JJ

THE COURT: Mr Kowalski is subject to an order made pursuant to s 39 of the Supreme Court Act 1935 (SA) (the SCA) prohibiting him from instituting any proceedings in a prescribed court without first obtaining the permission of this Court. The litigation history leading to the making of that order is set out in the decision of this Court in Kowalski v Sim and Others,[1] which we adopt for the purposes of these reasons. The South Australian Employment Tribunal (SAET) is a prescribed court. On 13 February 2018, Blue J granted Mr Kowalski permission to bring an application in the SAET to set aside three decisions of the South Australian Workers Compensation Tribunal (SAWCT) (the impugned decisions), some 15 years after they were made.
[1] [2019] SASCFC 96.
The impugned decisions were made with respect to a claim for worker’s compensation brought by Mr Kowalski under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA). The WRCA has since been repealed but Mr Kowalski’s application for permission proceeds on the uncontested premise that it continues to operate on his claim.
In April 1998, Mr Kowalski claimed compensation from his employer, Mitsubishi Motors Australia Limited (MMAL) for a heart attack suffered in late December 1997. On 27 October 1998, Mr Kowalski, his wife and MMAL executed an agreement, entitled Heads of Agreement (HoA), resolving Mr Kowalski’s heart attack, and other, claims after a mediation conducted by Mr Stephen Walsh QC. At that time, MMAL, which was an exempt employer, had not determined to accept or reject the heart attack claim, prompting Mr Kowalski to bring an application in the SAWCT for an order expediting that determination. In accordance with the terms of the HoA, Mr Kowalski’s expedition application was brought on before a conciliation officer who made a consent determination (the consent determination) rejecting his heart attack claim.
In 1999, Mr Kowalski unsuccessfully brought the first of several proceedings in the SAWCT to set aside the consent determination. The impugned decisions are those which dismissed Mr Kowalski’s applications to have the consent determination set aside. They are:
(a)The decision of McCouaig DP in August 2001 dismissing Mr Kowalski’s application of November 1999 to have the consent determination set aside pursuant to s 88H of the WRCA (the first setting aside decision); [2]
(b)The decision of the Full Bench in August 2002 dismissing an appeal against the first setting aside decision (the Full Bench decision);[3] and
(c)The striking out by McCouaig DP on 7 May 2003, as an abuse of process, a second application by Mr Kowalski to expedite the determination of his heart attack claim which he had purported to make again by correspondence in February 2003.[4]
[2]    Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93.
[3]    Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76.
[4]    Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 48.
Section 88H of the WRCA provided:
88H—Power to set aside judgments or orders
(1)The Tribunal may amend or set aside a judgment or order of the Tribunal—
(a)     by consent of the parties; or
(b)     in order to correct an error; or
(c)     if the interests of justice require that the judgment or order be amended or set aside.
(2) The power under subsection (1) may only be exercised by the President or a presidential member or conciliation officer to whom the President has delegated the power.
On its face, the discretion conferred by s 88H is a wide one, but the interests of justice generally, and the preservation of the finality of judicial or quasi‑judicial determinations in particular, are important considerations which confine its scope.
MMAL’s standing
Section 50(6) of the SCA defines a judgment to include an order or direction. In Legal Practitioners Complaints Committee v A Practitioner, King CJ explained the distinction between an order or direction on the one hand and an incidental ruling on the other as follows:[5]
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
[5] (1987) 46 SASR 126 at 127.
An order made pursuant to s 39 of the SCA is interlocutory but it is not merely an incidental ruling made in the course of a hearing. An order made pursuant to s 39 significantly changes the legal capacity of the person against whom it is made. The person subject to the order can no longer sue as of right. The order also provides a substantial protection to third parties who were otherwise immediately liable to an action brought as of right. A decision on an application for permission will either confirm that changed legal status or allow an exemption from it. It is therefore a judgment or order within the meaning of those terms in s 50 of the SCA.
Applications for s 39 permission are made ex parte. Proposed defendants to a claim, for which permission is granted, are persons aggrieved by it because they lose the privilege from suit they formerly enjoyed. They therefore have standing.
There are good legal policy reasons for construing an order to include a s 39 permission, and for recognising the standing of a proposed defendant. Errors may be made by reason of the ex parte nature of the application. If a proposed defendant wishes to appeal the s 39 permission, in order to obviate the need to defend the action, there may be good reason to grant permission to appeal to allow the error to be quickly corrected. The requirement for permission in appeals against interlocutory decisions will sufficiently protect the court, and the applicant, against disproportionate collateral litigation.
A proposed defendant who is invited to make submissions, on what would otherwise be the ex parte application, or who is heard on an application to have the s 39 permission revoked, or in seeking leave to appeal, will not generally be precluded from seeking a stay of the proceeding if the plaintiff is given permission to proceed. Much will depend, however, on the nature of, and conditions imposed on, the early intervention and any mutual understanding reached about its effect on subsequent proceedings.
Mediation of Mr Kowalski’s claims
From 1989 Mr Kowalski prosecuted many claims for compensation against MMAL in multiple proceedings. As at late 1998 there were some 15 actions before various courts, tribunals or review officers for a range of injuries.[6]
[6] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [2].
On 26 December 1997, Mr Kowalski suffered a myocardial infarction which he attributed to the continuing stress of those proceedings. On 22 April 1998, he lodged a claim for compensation against MMAL alleging the ‘aggravation, acceleration, exacerbation, deterioration of a pre-existing heart disease and depression, heart attack (myocardial infarction)’.[7] On 3 August 1998, Mr Kowalski lodged a claim for ‘disfigurement, travel expenses, rehabilitation service, scarring, medical costs and hospital costs’ said to have resulted from his heart attack and surgery. On 13 October 1998, Mr Kowalski lodged a further claim for compensation to ‘“clarify” his earlier claims’.[8]
[7] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [3].
[8] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [5]-[6].
MMAL had not determined those claims when the matter was submitted for mediation. The mediation commenced on 26 October 1998 and continued on 27 October 1998. On the second day, MMAL and Mr Kowalski executed the final version of the HoA which we set out below.
On 3 November 1998, MMAL and Mr Kowalski appeared before a Conciliation Officer on Mr Kowalski’s application for an expedited determination of his heart attack claim which he had lodged with the SAWCT on 17 July 1998. On that day, the Conciliation Officer made the following determination:[9]
On 3 November 1998, at the request of the parties, Conciliation Officer Richer made a determination pursuant to s 97 of the Act in the following terms:-
“Order/s:
Matter 4163/1998 is an expedited decision application referred to me pursuant to s 97 of the Act.
Upon hearing submissions from the parties and by consent I make this determination dismissing the claim for ‘Aggravation, Acceleration, Exacerbation, Deterioration of a pre-existing coronary heart disease and depression and heart attack (Myocardial Infarction)’ as stated in the claim form of 7/4/98 and further claimed on 2/8/98 and 13/10/98.
I note that the parties have entered into an agreement resolving all matters in dispute. The consent in this matter is made on the express understanding that if the terms are not met Mr Kowalski is entitled to make an application under s 88 H of the act (sic) to have the orders dismissing the action revoked.”
[9] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [12].
The last sentence of the note made by the Conciliation Officer is an illustration of a ground on which a s 88H application might properly have been brought. Mr Kowalski’s proposed applications are the antithesis of that ground; they seek the revocation of the order after MMAL has discharged its obligations under the terms of the HoA.
On 4 November 1998, MMAL through its solicitors wrote to a Review Officer informing him that Mr Kowalski and MMAL had resolved all matters in dispute including the matters before him and asking him to dismiss all claims made by Mr Kowalski against MMAL which were still extant before the review panel. The letter was co-signed by Mr Kowalski.
On 5 November 1998, the Review Officer made the following consent order:[10]
With the consent of both parties I hereby dismiss all claims made by Mr Kowalski against Mitsubishi which are currently before the Review Panel …
[10] Cited in Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [15].
The Heads of Agreement
There were several iterations of the HoA. The first iteration was partly in typed script and partly in the handwriting of Mr Walsh QC. It was initialled by persons present at the mediation on 26 October 1998. On 27 October 1998, the first iteration was re-engrossed and presented at the resumed mediation. The re‑engrossed document incorporated the previous handwritten notes and other changes. On the morning of 27 October 1998, Mr Kowalski and MMAL’s representatives discussed the re-engrossed HoA. A number of additional changes were agreed. The third and final version of the HoA was then engrossed and executed by everyone present, including Mr Kowalski and his wife (the executed HoA).
The executed HoA was in the following terms:
Heads of Agreement dated 27 October 1998
HEADS OF AGREEMENT
WHEREAS:
1. Kazimir Kowalski (“Kowalski”) of 26 Nalimba Street Hallett Cove in the State of South Australia and Mitsubishi Motors Australia Limited (MMAL) of Sherriffs Road Lonsdale in the said state have on the 26th day of October 1998 entered into a mediation.
2. Kowalski and MMAL have entered the mediation with the intent of trying to resolve all issues both current and future in dispute between them.
3. Kowalski and MMAL have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement.
THE PARTIES HAVE AGREED THAT:
1.Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:
1.1     Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997
1.2     Any outstanding sick leave
1.3     Any matters related to the termination of his employment with MMAL
1.4     Any superannuation payable by the MMAL Staff Superannuation Fund.
2.     The said sum of $200,000 is to be paid to Kowalski as follows:
2.1     The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment
2.2     The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above
2.3     The sum of $10,000 to be paid by MMAL in consideration of Kowalski forgoing any claims or future claims in any way arising from his employment
3.     In consideration of the matters set out in paragraphs 1 and 2 above, MMAL agrees
3.1     To forgo recovery of legal costs which are owed by Kowalski and agrees not to seek repayment from Kowalski of monies previously paid by MMAL or the Superannuation Fund including the monies paid to R J Cole & Partners with respect to Action 185 of 1992 in the Industrial Court
3.2     To comply with any Court orders for discovery and or subpoenas for witnesses in relation to any action taken by Kowalski against R J Cole & Partners
3.3     To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
3.4     To prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission.
4.In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:
4.1     Not to institute any legal proceedings and or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against R J Cole & Partners and Dowd.
4.2     To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement
4.3     To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL
4.4     To execute all documents necessary to bring into effect this agreement and to make such personal attendances required at any Court, Tribunal or Commission
4.5     That any amounts payable to the Australian Taxation Office from the sum of $200,000 are to be borne by Kowalski.
5.The parties agree that payment of the sums in paragraphs 1 and 2 will be made in the following manner:
5.1     Fountain & Bönig are to make arrangements for all matters requiring personal attendance by the parties to achieve discontinuance of those proceedings to be called on and the parties shall thereupon attend and effect discontinuance of those proceedings
5.2     As to the matters which do not require personal attendance, Fountain and Bönig will prepare the necessary documentation for discontinuance or consent orders
5.3     Upon satisfaction of 5.1 above, Kowalski shall sign all documents prepared pursuant to clause 5.2 above whereupon bank cheques for the total sum of $200,000 are to be handed to Kowalski (less any taxation that must be deducted by the Superannuation Fund).
5.4     It is the intention of the parties that the terms of this agreement be given effect to as quickly as possible and within 14 days of the date of this agreement save where beyond the control of the parties because of the need to attend personally at any Court Tribunal or Commission.

The material differences between the executed HoA and the earlier iterations were:
·the words ‘income maintenance and medical expenses’ which had appeared after the word compensation, in clause 1 were deleted in the executed HoA; and
·in the executed HoA the words ‘as an ex gratia payment’ were inserted between the word ‘MMAL’ and the words ‘as compensation’ in clause 2.2 of the earlier iterations.
The impugned decisions
In the first setting aside decision, McCouaig DP rejected allegations of fraud, misrepresentation and unconscionable conduct in the drawing up and execution of the final HoA made by Mr Kowalski. Mr Kowalski had alleged that documents recently discovered by him showed that MMAL had not negotiated in good faith. McCouaig DP found that Mr Kowalski was a willing party to the mediation and was happy with the settlement outcome. McCouaig DP also found that:
·The SAWCT had no jurisdiction to make any orders or declarations in respect of the HoA.
·Section 88H did not apply to the consent determination made by the conciliation officer because that determination was statutorily deemed to be a decision of the relevant compensating authority, that is, MMAL, and not a determination of the SAWCT.[11]
·That the HoA was not void for repugnancy of s 119(1) of the WRCA.
[11] Sections 97, 97A and 97B of the WRCA are as follows:
Part 6B—Special jurisdiction to expedite decisions
97—Special jurisdiction
(1)A worker or employer who believes there has been undue delay in deciding a claim or other matter affecting the worker or employer may apply to the Tribunal, in the manner and form prescribed by regulation, for expedited determination of the matter. …
(3)An application for expedited determination of a matter cannot be made until at least 14 days after the day the matter was placed before the decision-maker whose decision is required.
97A—Constitution of Tribunal for proceedings under this Part
For the purpose of proceedings under this Part, the Tribunal may be constituted of a presidential member or a conciliation officer.
97B—Powers of Tribunal on application
(1)On an application for expedited determination of a matter, the Tribunal may—
(a)     give directions the Tribunal considers necessary to expedite the determination of the matter; or
(b)    decide the matter itself. . …
(3)If the Tribunal decides a claim under this section, the decision—
(a)     is to be treated as a decision of the relevant compensating authority; and
(b)    is a reviewable decision.
Mr Kowalski unsuccessfully appealed against the first setting aside decision to the Full Bench of the SAET. President Judge Jennings held that the Full Bench did not have jurisdiction to hear the appeal because there was no question of law involved. That conclusion was mistaken. Both the issue of whether s 88H of the WRCA applied to the dismissal of the expedited hearing application and the issue whether the executed HoA contravened s 119 of the WRCA raised questions of law. Be that as it may, for reasons which appear below, the decision of McCouaig DP that the HoA was not inconsistent with s 119 of the WRCA was, at least in respect of paragraph [4.3] of the executed HoA, correct in law. The Deputy President’s ultimate rejection of the allegations of fraud made by Mr Kowalski raised questions of fact alone. The decision that s 88H did not apply to the consent determination did raise a question of law and its correctness may be doubted for the reasons given in [76] below. However, that is of no consequence given the dismissal of the application on its merits.
Deputy President McCusker affirmed McCouaig DP’s decision holding that Mr Kowalski’s mere desire to re-agitate his claim was not a proper reason to set aside the consent determination. McCusker DP also held that the consent determination could not be set aside if the executed HoA was, as his Honour found, binding. Deputy President McCusker also affirmed McCouaig DP’s decision that the executed HoA did not contravene s 119 of the WRCA.
Deputy President Cawthorne agreed with both Jennings PJ and McCusker DP.
Deputy President McCouaig dismissed Mr Kowalski’s second expedited hearing application because the efficacy and finality of the executed HoA had been finally decided by the first setting aside decision and the Full Bench decision. McCouaig DP held that the application was therefore an abuse of process by reason of re-litigation.
The application for s 39 permission
On 8 January 2016, Mr Kowalski applied for permission under s 39 of the SCA to file applications pursuant to s 88H of the WRCA to set aside the impugned decisions (the s 39 application). In an affidavit supporting the application, Mr Kowalski deposed that he had again recently discovered a document relating to the mediation. On this occasion, the document was a copy of a facsimile from Mr Walsh QC dated 26 October 1998 containing the 26 October iteration of the HoA. Mr Kowalski contended that the HoA was executed non est factum because he was not made aware of the changes between the 26 October iteration and the executed HoA to which we earlier referred. Mr Kowalski deposed that MMAL’s legal representatives did not draw his attention to the changes made in the executed HoA. He contended that if the 26 October iteration had been before McCouaig DP and the Full Bench they would have reached different conclusions as to whether the HoA breached s 119 of the WRCA.
It is appropriate to immediately note a fundamental paradox inherent in that contention. Mr Kowalski’s contention is that, because he was not told by MMAL’s solicitors or the mediator that the text of the executed HoA saved it from invalidity and therefore precluded him from taking the $200,000.00 and pursuing claims for additional awards, it was non est factum. The practical effect of Mr Kowalski’s submission is that he would not have resolved his dispute with MMAL pursuant to the executed HoA if he had known that the changes in the text precluded him from later contending that the very agreement he was purporting to make was void by reason of inconsistency with s 119 of the WRCA. We do not suggest that Mr Kowalski did in fact intend to take the settlement only to then breach the agreement and pursue his claims for compensation. Indeed, even though his intentions are irrelevant for present purposes, it is much more likely that he only later came to regret his decision to settle. The point we are making is that to allow the plea of non est factum to vitiate Mr Kowalski’s agreement retrospectively imputes to him that very stratagem. It is difficult to conceive of a less meritorious deployment of the doctrine.
On 24 April 2017, Blue J allowed Mr Kowalski’s s 39 application, indicating he would grant Mr Kowalski s 39 permission to bring applications pursuant to s 88H of the WRCA to set aside the impugned decisions. The reasons of Blue J explained that the permission was granted:[12]
[28]… so that the Tribunal can conclusively determine the substantive issue whether the 27 October version of the Heads of Agreement is non est factum and whether those provisions of the Heads of Agreement that bar compensation claims by Mr Kowalski under the Act are void as being in contravention of section 119 of the Act.
[12] AG v Kowalski (Ruling 3) 24 April 2017 at [28].
Blue J deferred making the final order granting permission pursuant to s 39 of the SCA to allow Mr Kowalski an opportunity to file an application in accordance with his reasons.
On 13 February 2018, Blue J gave Mr Kowalski permission to institute the proceedings pursuant to s 88H of the WRCA to set aside the impugned decision (the s 88H proceedings).
On 15 February 2018, Mr Kowalski instituted the s 88H proceedings on the grounds that:
·MMAL and its legal representatives altered the HoA between 26 October 1998 and 27 October 1998 such that the executed HoA was non est factum.
·The earlier iteration and/or the executed HoA contravened s 119 of the repealed Act.
The test for s 39 permission
It is a testament to the amount of litigation generated by Mr Kowalski that the leading authority in this Court on the test to be applied on an application for permission pursuant to s 39 of the SCA was established by this Court in 2006 in Kowalski v Mitsubishi Motors Staff Superannuation Fund Pty Ltd.[13]
[13] [2006] SASC 159 at [25]-[27].
In that case Doyle CJ articulated the following approach:
[25]In that context, the issue before the Master had two facets. First, it was necessary to look at the claim itself. On its face did it appear to be tenable as a matter of fact and law, or to have a possible chance of success? It was appropriate to consider, in a preliminary manner, whether there appeared to be a tenable factual basis for the claim, as well as a tenable legal basis. Having regard to the context in which the application for leave was made, it was not sufficient to examine only the legal aspects of the claim made, treating as correct assertions of fact made by Mr Kowalski.
[26] The second facet of the issue before the Master required, having regard to the circumstances that gave rise to the order, that he consider whether there was reason to think that the proceedings, if instituted, would give rise to the re-agitation of matters already decided between Mr Kowalski and MMAL or the Trustee. That is, would the proceedings be vexatious? This aspect is significant. The purpose of the restraining order would be defeated if the Court confined its attention to the proposed proceedings, without considering their relationship to other proceedings that caused the Judge of this Court to make the restraining order.
[27]It was neither necessary nor appropriate for the Master to embark on a preliminary trial of the action. Nor was it necessary to require Mr Kowalski to outline his whole case, or to explain how he would meet each difficulty of fact and law that might confront him. However, while it is not possible to state with precision how the line was to be drawn, it was necessary to consider both facets of the issue identified by me, and to consider matters of fact and law. Otherwise, as I have said, the order will provide little protection to MMAL. To put it simply, it was not appropriate to accept Mr Kowalski’s assertions of fact without enquiry, and it was necessary to consider to some extent at least the relationship between the claim that he wished to make and other claims he had made.
The second limb of the test explained by Doyle CJ in [26] of his reasons does not present any obstacle to a s 39 applicant seeking redress for completely unrelated wrongs committed by different defendants. Personal injuries claims for later accidents are obvious examples. For such matters the applicant need only overcome the relatively low hurdle of demonstrating a tenable case. The two limbs of the test strike a balance between protecting defendants who have been vexed by unmeritorious proceedings which seek to undermine the final judgment in their favour, and allowing the applicant the protection of the law for unrelated wrongs.
Doyle CJ concluded by emphasising that whilst a mini-trial of the merits of the proposed actions was not required, it was not appropriate that the assertions should be accepted without enquiry: [14]
[28]It is no answer to this to say that if the Statement of Claim was defective, the Trustee was entitled to attack it in the District Court. The purpose of requiring leave to proceed is to provide a preliminary screening to prevent unsustainable or vexatious claims, as a matter of fact or law, being instituted.
[14] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2006] SASC 159 at [28].
MMAL’s application for permission to appeal
On 27 February 2018, MMAL applied for permission to appeal against the grant of s 39 permission by Blue J.
In dismissing the application for permission to appeal, Blue J elaborated on his reasons for giving Mr Kowalski s 39 permission which, by reason of the ex parte nature of a s 39 application, were brief:[15]
[15] Attorney-General (SA) v Kowalski (No 7) [2018] SASC 62.
[33]First I considered that it was reasonably arguable that the provisions of the 26 October version and the 27 October version of the Heads of Agreement purporting to preclude Mr Kowalski from pursuing existing or future claims against Mitsubishi were void as being in contravention of section 119 (essentially for the reasons referred to above).
[34] Secondly I considered that it was reasonably arguable either that:
1. because Deputy President McCouaig in 2001 and the Full Bench in 2002 had held that they had no jurisdiction to determine the matter before them (the set aside application and appeal respectively), such observations as were made concerning section 119 had no binding force as between the parties and in any event could not be regarded as a definitive construction of the meaning and effect of section 119; or
2. the Full Bench did not purport to decide the construction of section 119 or its effect on the Heads of Agreement because, although Deputy President McCusker said in a single paragraph that Deputy President McCouaig’s conclusion in respect to section 119 was correct, it is not clear what this meant in context (including that he had already held that the Full Court lacked jurisdiction and he was only making observations for the benefit of Mr Kowalski at this point) and even if he intended to decide the point of construction, President Judge Jennings did not address the question at all and Deputy President Cawthorne cannot be regarded as having decided the point of construction when he only said that he agreed generally not only with Deputy President McCusker but also with President Judge Jennings; or
3. Deputy President McCouaig in 2003 overlooked or misunderstood the matters referred to in 1 above or 2 above and otherwise would or should have come to a different decision in action 1539 of 2003.
[35]Thirdly and in the alternative to the second matter, I considered that it was reasonably arguable that, if the 27 October version was not binding or should be rectified to accord with the 26 October version because Mitsubishi’s representatives failed to explain to Mr Kowalski the insertion of ‘ex gratia’ and deletion of ‘(income maintenance and medical expenses)’, Deputy President McCouaig in 2001 and the Full Bench in 2002 might have concluded (to the extent that they addressed the issue of illegality at all) that the 26 October version offended section 119. This is because it was more strongly arguable that the 26 October version provided for payment of $125,308.57 as workers compensation under the Act for future disability and provided for full and final settlement of Me (sic) Kowalski’s entitlements to compensation under the Act (income maintenance and medical expenses). It may be that, regardless of the issue of Mr Kowalski’s knowledge and understanding, the 26 October version throws light on the section 119 issue in any event.
[36]Fourthly I considered that, if permission were to be given to Mr Kowalski to apply to set aside Deputy President McCouaig’s 2003 decision, permission should also be given at the same time to apply to set aside Deputy President McCouaig 2001 decision and the Full Bench’s 2002 decision to ensure that there is not a procedural lacuna (or potential multiplicity of actions) in the Tribunal whereby it is suggested that the Tribunal cannot consider setting aside Deputy President McCouaig’s 2003 decision while the other two decisions remain on foot. I considered that there should be no significant additional time or cost expended if Mr Kowalski applies to set aside the three decisions compared to an application to set aside one or two only of the three decisions.
As will shortly appear, we would hold that it is not arguable that it is inconsistent with s 119 of the WRCA to agree to compromise a claim under the WRCA by consent. Section 119 of the WRCA prohibits agreements which abrogate, modify or waive the rights it confers, or prohibits proceedings to enforce those rights. If Mr Kowalski, after executing the HoA, had not consented to the dismissal of his expedited claim, the executed HoA may not have precluded him from prosecuting it, even if by so doing he was in breach of it. However, the short point is that Mr Kowalski did consent to the dismissal of his heart attack claim and the consent determination was made pursuant to the provisions of the WRCA. Any application now to set aside the consent determination must take into account the circumstance that Mr Kowalski consented to it pursuant to an agreement for which he received substantial consideration.
Secondly, it cannot be said that the decisions of McCusker DP and Cawthorne DP on this point were obiter merely because they also dismissed the appeal on other grounds.
Thirdly, the differences between the earlier iterations of, and the executed, HoA were immaterial to the substance of the compromise. It is not arguable that the executed HoA was non est factum.
Finally, the proposed s 88H proceedings were, by their very nature and purpose, designed to re-litigate the issue decided adversely to Mr Kowalski by the impugned decisions. They fell clearly within the second limb of the test propounded by Doyle CJ in the passages cited above.
We expand on these conclusions below.
Non est factum – the decision of the District Court Judge
It is convenient first to consider whether Mr Kowalski’s contention that the executed HoA was non est factum was reasonably arguable.
After Blue J delivered reasons on 24 April 2017 indicating that he would give permission, but before an order granting s 39 permission was made on 13 February 2018, a Judge of the District Court delivered judgment in the matter of Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd[16] (Superannuation Fund proceeding). In the Superannuation Fund proceeding Mr Kowalski alleged that the Mitsubishi Motors Staff Superannuation Fund Pty Ltd (Mitsubishi Superannuation) had breached its fiduciary duty to him and sought an order that it consider his claim for a TPD benefit according to law. In its defence Mitsubishi Superannuation relied on the HoA.
[16] [2017] SADC 57.
The District Court Judge dismissed Mr Kowalski’s action. On this appeal MMAL did not rely on that decision as res judicata. Nonetheless it is useful to set out below the facts found by the District Court Judge to show the similarity between the evidence in that action and the evidential material on which Mr Kowalski sought s 39 permission:[17]
[17] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44 at [36].
(v)The appellant intended that the 26 October 1998 initialled in principle Heads of Agreement reflected an in principle settlement of all issues between the appellant and MMAL including any superannuation payable by the Fund. The appellant understood, when he read this document on 26 October 1998, that it recorded his agreement to accept the sum of $200,000 in full and final settlement of any entitlements he may have to sick leave, compensation, damages and superannuation including any entitlement with respect to any total and permanent disability. These matters were clearly and unambiguously reflected in the 26 October 1998 initialled in principle Heads of Agreement, the 27 October 1998 re-engrossed in principle Heads of Agreement prepared the next day and the Executed Heads of Agreement.
(vi)It was anticipated by the parties at the mediation on 26 October 1998 that the 26 October 1998 initialled in principle Heads of Agreement would be engrossed for signing or for further consideration and then for final signing the next day, that is, 27 October 1998.
(vii)On 27 October 1998, a re-engrossment of the 26 October 1998 initialled in principle Heads of Agreement was presented at the mediation. This document incorporated not only the previous handwriting of the mediator but some other changes (the 27 October 1998 re-engrossed in principle Heads of Agreement).
(viii)On the morning of 27 October 1998, the appellant and representatives of MMAL discussed the 27 October 1998 re-engrossed in principle Heads of Agreement and agreed to it, subject to a number of changes.
(ix)After the appellant and representatives of MMAL agreed to the changes, the third and final version (that is, the Executed Heads of Agreement) was engrossed and executed by everyone present, including by the appellant and the appellant’s wife. This is the document, the full terms of which have been set out earlier in paragraph [24] of these reasons.
(x)The Executed Heads of Agreement is the document which has been the subject of litigation between the parties during the years subsequent to 27 October 1998 and it is the document the parties agreed to and executed on 27 October 1998, ‘each understanding what they were agreeing to and agreeing to be bound by’.
(xi)The appellant understood that the $200,000 referred to in the Executed Heads of Agreement included a sum to be paid from the Fund which was in settlement of all claims he had or may have in respect of superannuation. The appellant agreed in consideration of such sum not to institute any legal proceedings in respect of any superannuation which may be payable by the Fund.
(xii)The appellant intended that the Fund be bound by the agreement in which he had entered with MMAL. In this context, the appellant understood that Mr Breugem was at the mediation representing the Fund as well as MMAL.
(Footnotes omitted)

The District Court Judge also found that the appellant ‘concocted’ his account of the drawing up and execution of the HoA. The District Court Judge said:[18]
[18] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [170], [172] and [176].
[170]I do not believe [Mr Kowalski] when he told me that in the morning of 27 October 1998 senior and junior counsel acting for Mitsubishi Motors presented to him a fabricated Heads of Agreement and told him to sign it. I do not believe him when he told me that he then signed it without reading it, and that he relied on Mitsubishi’s senior and junior counsel. I find that when [Mr Kowalski] told me these things, he was being deliberately untruthful.
…
[172]I am satisfied and find that [Mr Kowalski] was, on the morning of 27 October 1998, provided with the second version of the Heads of Agreement which I find was an engrossment, with amendments, of the first version he had been sent by [the mediator] the evening before. I am satisfied and find that [Mr Kowalski] read the second version and that he was well aware of the amendments to it. I find that they were then the subject of discussion between he and the representatives of Mitsubishi Motors. I am satisfied of that because it makes common sense, and because of the changes that were made to the second version before the final version was produced.
…
[176]I am satisfied and find that after the second version of the Heads of Agreement was discussed and agreed, the final Heads of Agreement was engrossed and was signed by the parties including [Mr Kowalski’s] wife. I am satisfied and find that before [Mr Kowalski] signed the final agreement he read it and satisfied himself that it was in the form that he had agreed to and that he would be prepared to sign and be bound by its terms. This included an understanding and intention by him that the Superannuation Fund be bound by the terms of the agreement. I find that he signed it on that basis.
Non est factum – the Full Court decision
Mr Kowalski appealed against the decision to the Full Court of this Court. The Full Court dismissed Mr Kowalski’s appeal of the District Court Judge (Superannuation Fund appeal).[19] The Full Court decision was delivered on 1 June 2018, after Blue J had dismissed MMAL’s application for permission to appeal against his Honour’s grant of s 39 permission.
[19] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44.
Nicholson J, with whom Kourakis CJ and Hinton J agreed, held that the District Court Judge was correct to reject Mr Kowalski’s claim that the HoA was non est factum. Nicholson J set out the elements of a non est factum plea and explained the reasons why it failed in respect of the HoA as follows:[20]
[20] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44 at [98]-[101].
[98]The appellant’s claim is that the Executed Heads of Agreement should be found to be void on the basis (and only on the basis) that it is non est factum. A plea of non est factum typically has potential to apply with respect to a document that has not been signed at all. However, it can apply in limited circumstances where the document in question has been signed. The law relating to a plea of non est factum remains that as summarised by the High Court in Petelin v Cullen. It is sufficient in the present circumstances to note that ordinarily three requirements need to be made out to succeed with a plea of non est factum.
(i)    That the person who signed the document is under a disability;
(ii)     That there is a sufficient difference between the document as it is (as signed) and as the person who signed it believed it to be; and
(iii)     In cases where the rights of an innocent third party may have intervened, the person who signed the document should not have been careless.
[99]For obvious reasons, there is a heavy onus on a defendant who seeks to establish a defence of non est factum. The consideration in (iii) does not arise in this case but considerations (i) and (ii) do.
[100]It is not necessary to decide whether, in the circumstances before the Judge, it was open to his Honour to make the findings summarised in paragraphs [96], including those concerning the appellant’s ‘concoction’ of his reasons for the late emergence of the non est factum contention and the extent of the appellant’s awareness of the changes. Irrespective of the Judge’s findings as to what the appellant truly believed and understood, the appellant adduced no evidence nor foreshadowed any claim to the effect that he was, at the time, a person under a disability. According to the High Court in Petelin v Cullen, the class of persons who can avail themselves of the defence of non est factum is a limited one.
It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document.
There is nothing before the Judge or this Court that would raise for consideration the possibility that the appellant suffered under a relevant disability. This is sufficient to render as fanciful the availability to the appellant of a defence of non est factum.
[101]In addition, the document as signed was not sufficiently different from the earlier initialled version so as to permit a defence of non est factum to arise. In Petelin v Cullen, the High Court went on to observe.
To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact …
The authorities support, as a general proposition, that where the actual and the supposed documents are both legal documents dealing with the same property or rights, any difference in effect will not ordinarily be sufficiently radical or fundamental. In the present case, the nature and character of the document, at all times, was clearly understood by the appellant. The fact that some forms of expression, even if they achieved a material effect, differed from one version of the document to another would not on any analysis render the document as executed radically different or fundamentally different from the document the appellant understood it to be.
(Footnotes omitted)
Nicholson J also explained why there was not, in the circumstances of the case presented by Mr Kowalski, any other vitiating factor:[21]
[102]Further, there was no evidence adduced by the appellant which would support any wider attack on the enforceability of the Executed Heads of Agreement. The document was available to be read by the appellant prior to his signing of it, he read the document and whether or not he fully understood its terms or the ramifications of its coming into existence he signed the Executed Heads of Agreement and thereafter became bound by its terms. The only qualification to that would be if there had in fact been some form of material misrepresentation as to the contents of the document. However, this was not the appellant’s case, which was that the Executed Heads of Agreement was a document fabricated without his knowledge presented to him by senior and junior counsel of MMAL with an instruction to sign it which the appellant did without reading it. This being the appellant’s case as to the circumstances in which he came to sign the Executed Heads of Agreement (rejected by the Judge), the only potential defence available was non est factum. This was the only defence of this nature pressed by the appellant and for the reasons earlier given, this defence is simply unavailable.
Non est factum - analysis
[21] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2018] SASCFC 44 at [102].
Blue J referred to the decision of the District Court Judge in the Superannuation Fund proceeding and then correctly observed as to the change in words between the earlier iteration and the final version of the HoA: [22]
[92]It appears from Judge Muecke’s judgment that the argument advanced by Mr Kowalski before Judge Muecke was a different and more general argument, and was in any event in a very different context, to the specific argument that Mr Kowaksi wishes to advance in the new proceeding (which relates on to the “(income maintenance and medical expenses)” omission and ex gratia addition). Judge Muecke characterised Mr Kowalski’s argument as a claim that “his signature to the Heads of Agreement was obtained by fraud or by mistake, or that it is or would be unconscionable to allow it to stand as a valid and binding agreement”.
[22] Attorney-General (SA) v Kowalski (No 7) [2018] SASC 62 at [92].
After setting out the findings adverse to Mr Kowalski made by the District Court Judge, Blue J continued:[23]
[23] Attorney-General (SA) v Kowalski (No 7) [2018] SASC 62 at [94]-[96], [98]-[99].
[94]Judge Muecke did not at any point in his judgment address whether Mr Kowalski knew or understood that the words “(income maintenance and medical expenses)” had been omitted from the 26 October version. Judge Muecke did address the question whether Mr Kowalski knew and understood that the words “ex gratia” had been added to the 26 October version. Judge Muecke said:
I am satisfied and find that the plaintiff was at that time aware that the sum of $125,000 odd which was to be paid by MMAL had been changed from the draft version he had received the evening before to an ex gratia payment as compensation. I am satisfied and find that he knew that, and that he knew or assumed that there was a reason for it. It was either because the preamble to paragraph 1 of the first version had been amended by the addition (in Mr Walsh's handwriting) of the sentence: “Such sum is agreed to be paid with a denial of liability”, or he thought, or it was explained to him, that the agreement could be effected more quickly with that change. Whatever the reason, if there was one, I am satisfied and find that the plaintiff understood and agreed to this change.
[95]Judge Muecke did not identify the relevance of that change to the issues between Mr Kowalski and AMP Superannuation. There is nothing in Judge Muecke's decision to indicate that this was considered to be relevant to the section 119 issue in relation to the Heads of Agreement and in particular Judge Muecke did not give any consideration to the question whether the 26 October version (as opposed to the 27 October version) contained provisions that offended section 119.
[96]Judge Muecke made the finding extracted at [94] above in circumstances in which Mr Kowalski was not cross-examined and it was self-evidently not put to him in cross examination that his evidence about not being told of the addition of the words ‘ex gratia’ was false. The finding was also made in circumstances in which no evidence was adduced from any other witness who was present at or party to the communications between the parties on 26 and 27 October 1998.
…
[98]The question on Mitsubishi's application for permission to appeal is whether it is reasonably arguable that Mitsubishi can establish on appeal to the requisite standard (ie beyond reasonable argument) that it is an abuse of process by re‑litigation for him to contend in the new proceeding that he was not aware when he executed the 27 October version of the omission of the words “(income maintenance and medical expenses)” or the addition of the words “ex gratia”.
[99]For the following reasons, this contention is not reasonably arguable by Mitsubishi. Even if (contrary to the position identified at [64] and [85] to [87] above) it had been necessary to find that it would not be an abuse of process by re-litigation for Mr Kowalski to so contend in the new proceeding, I would have so found for the following reasons.
(Footnotes omitted)
Blue J found that it was not reasonably arguable that MMAL could establish on appeal that the proposed s 88H proceeding would be an abuse of process by re-litigation because:
·Judge Muecke made no finding that Mr Kowalski knew and understood that MMAL had omitted the words ‘(income maintenance and medical expenses)’.
·The finding that Mr Kowalski knew and understood that MMAL had added the words ‘ex gratia’, was made in a very different action and in a very different context to the issue that will arise in the new proceeding.
·Mr Kowalski's evidence was not challenged in cross-examination or contradicted by any witness.
·Mr Kowalski does not seek to litigate a new entire case (as has commonly been the case in actions which have been held to involve abuse of process by re-litigation) but merely to raise non est factum as a subsidiary issue to an answer by him to a contention by MMAL that he is precluded by the Heads of Agreement from bringing any workers compensation claims against MMAL.
·This is not a case in which the purpose of the new proceeding is to mount a collateral attack on the decision in the superannuation action.
We make the following observations about the way in which Blue J distinguished the decision of the District Court Judge in the Superannuation Fund proceeding.
First, and most importantly, the proposed s 88H proceedings were doomed to fail because Mr Kowalski did not put forward any material on his application for s 39 permission which would satisfy the elements of a non est factum plea identified by Nicholson J on the Superannuation Fund appeal, namely:
·an operative disability; and
·a substantial, if not radical, difference in the nature and character of the document.
Blue J did not identify any other legal foundation for an obligation on the part of MMAL, or the mediator, to explain or warn Mr Kowalski about the possible legal consequence that the change in the text might make it more difficult for him to set aside the very agreement, which he had made voluntarily, as being contrary to s 119 of the WRCA. Nor was there any finding that there was any misrepresentation. It was therefore not reasonably arguable that there was any other circumstance which vitiated the HoA.
Secondly, not only was the executed HoA not materially different, such differences as there were, were immaterial. The changes in text from the earlier iterations of the HoA were purely matters of form and could not affect the question whether, as a matter of substance, the executed HoA was inconsistent with s 119 of the WRCA. Despite the use of the words ‘ex gratia’, the sum of $125,308.57 was plainly payable pursuant to a contractual obligation. It was equally plain that it was being paid in exchange for the dismissal of Mr Kowalski’s workers compensation proceedings. As shall be explained below, the relevant question is whether the agreement was valid insofar as it bound Mr Kowalski to consent to the dismissal of his existing claims. For the reasons given below, it was. The legal effect of the HoA on future claims and entitlements does not arise on the challenge to the impugned decisions.
Thirdly, it is not a vitiating factor for the purpose of the plea of non est factum that a party might have a mistaken view about the statutory consequences of the agreement he or she makes. The doctrine of non est factum is concerned with what the parties have agreed in fact, and not with whether they have foreseen the legal ramifications of their agreement.
Mr Kowalski does not claim that he had s 119 of the WRCA in mind during the conciliation. He does not claim that he proceeded on the assumption that the earlier iterations and the executed HoA were void for inconsistency with s 119 of the WRCA. And, of course, he does not claim that when he negotiated with MMAL he told them that he was only prepared to settle if the settlement was embodied in an agreement which he would be able to disavow as being contrary to s 119 of the WRCA. The question is whether the substance of the agreement executed and embodied in the HoA was that which Mr Kowalski believed he was making. On the material put before Blue J, the plea of non est factum was bound to fail.
Fourthly, the very failure of the plea in the Superannuation Fund proceeding was also relevant to the exercise of the s 39 discretion. The findings of the District Court Judge were that Mr Kowalski understood the substance and effect of the HoA. Moreover, the District Court Judge found as a fact that Mr Kowalski read the second version and was well aware of ‘the amendments to it’.[24] The District Court Judge found Mr Kowalski to lack credibility. The adverse decision in the Superannuation Fund proceeding demonstrates the improbability of Mr Kowalski’s contention that the executed HoA was non est factum.
[24] Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2017] SADC 57 at [172].
For all of the above reasons, it was therefore not arguable on the material before Blue J that the HoA was non est factum.
Before leaving this issue, we refer to the observation of Blue J that Mr Kowalski’s evidence that he was not told about the addition of the words ‘ex gratia’ was not challenged before the District Court Judge. The failure to cross-examine Mr Kowalski on that issue could properly have founded a submission to the District Court Judge that he should accept Mr Kowalski’s evidence. The failure to challenge Mr Kowalski was a matter for the District Court Judge to take into account in weighing the evidence. However, nothing turns on it now. It remains the case that the grant of permission to Mr Kowalski to contend non est factum on the proposed s 88H application allowed him to re-litigate the very factual issue on which he failed before the District Court Judge. Litigation is seldom perfectly conducted. The doctrine of abuse of process by re-litigation is not confined to those cases in which the earlier litigation was free of imperfections. If proceedings which re-litigate earlier adjudication issues were permitted because the earlier litigation was not error-free, the law would encourage a lackadaisical approach to litigation.
Construction of s 119
Section 119 of WRCA provided:
119           Contract to avoid Act
(1)    Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.
(2)    Any purported waiver of a right conferred by or under this Act is void and of no effect.
(3)    Any person –
(a)who enters into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act; or
(b)who attempts to induce a person to waive a right or benefit conferred by or under this Act,
is guilty of an offence.
Penalty: $5,000 or imprisonment for one year.
In Workers Rehabilitation & Compensation Corporation v JR Engineering Services Pty Ltd & Ors, Debelle J observed:[25]
The operation of this provision is confined to those parts of an agreement which purport to exclude, modify or restrict the operation of the Act. If an agreement contains a clause which falls within that description, the agreement is not wholly void but void only to the extent that it does not (sic) purport to exclude, modify or restrict the operation of the Act.
[25] [1995] SASC 4992.
In Kowalski v Mitsubishi Motors Australia Ltd,McCouaig DP held that the executed HoA did not offend section 119. His Honour said this: [26]
[111]Section 119 does not require that every resolution of every claim by every worker must be approved by the Corporation. This is not what the section says, as it so easily could have if that had been Parliament’s intention. Rather, I think the intent of s 119 is to safeguard worker’s rights and benefits under the Act by declaring that contractual attempts to exclude, modify or restrict the operation of the Act without the consent of the Corporation will be deemed void and of no effect.
[112]There can be no suggestion here of the worker being denied his due rights and benefits under the Act, or of anyone trying to circumvent the operation of the Act. This is a case of a worker, well aware of his rights and benefits under the Act, choosing to compromise his disputed entitlements in respect of existing claims on terms that he was pleased with at the time and thereupon, in conjunction with Mitsubishi’s solicitors, carefully ensuring that his claims were properly finalised in accordance with the Act.
…
[114]The parties’ ability to consent to an acceptance or, as here, rejection of a claim for compensation is fundamentally within the ambit of the Act. One of the stated objects of the Act is ‘to reduce litigation and adversarial contests to the greatest possible extent’ and there is a heavy focus in the current scheme on conciliated outcomes. To circumvent, or attempt to circumvent, the operation of the Act is quite another thing.
[115]I find that neither the settlement reached by the parties nor the Agreement recording that settlement purported to exclude, modify or restrict the operation of the Act so as to give rise to any application of s 119 of the Act.
[26] Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93 at [111]-[112], [114]-[115].

As we have already observed, McCusker DP in the Full Bench decision agreed with that analysis. Importantly, the decision of McCouaig DP was also referred to with approval by Bleby J in the decision in which Mr Kowalski was first declared a vexatious litigant.[27]
[27] Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [171]-[180].
In the Superannuation Fund appeal, Nicholson J made the following observations about s 119(1) of the WRCA:[28]
[112]The first point to note is that, to the extent that subsection 119(1) might be engaged at all with respect to an agreement or arrangement, it will only do so to the extent that the agreement or arrangement purports to exclude, modify or restrict the operation of the Act. To that extent and only to that extent it is void and of no effect. The engagement of subsection 119(1) will not necessarily render the agreement itself as a whole invalid. In other words, subsection 119(1) can only apply to an occasion where, otherwise, the Workers Rehabilitation and Compensation Act would have applied to the parties’ dealings.
[113]Subsection 119(1) does not prevent the entry into a compromise or resolution of an existing claim, except to that extent (on the assumption that the consent of the corporation had not been obtained). If a future claim were to be made, that is, a claim arising out of circumstances that post-date the entry into the agreement or arrangement, the compensating authority would be obliged to determine that claim in accordance with the requirements of the Act and any agreement or arrangement that purported to exclude, modify or restrict the operation of the Act would be of no effect. As such, an enforceable order for an amount properly payable could still be made notwithstanding the existence of the agreement or arrangement. Such an order would be enforceable in the Magistrates Court or the District Court and any monies that had been received pursuant to the agreement would be dealt with, to the extent appropriate, by way of set off or cross-claim.
However, Nicholson J then correctly observed that s 119(1) of the WRCA had no operation on the HoA insofar as it precluded any action against Mitsubishi Superannuation.
[28] [2018] SASCFC 44 at [112]-[113].
In the same decision, the Chief Justice observed:
[4]Secondly, on the issue of the application and effect of s 119 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act), I would emphasise the importance of Clause 5 of the Executed Heads of Agreement. Clause 5 did not purport to exclude or modify the operation of the Act in giving effect to the agreement reached. On the contrary, it contemplated the resolution of proceedings by discontinuance or consent orders. The resolution of proceedings in accordance with the dispute resolution procedures of the Act does not contravene s 119 of the Act. On the other hand, I acknowledge that the Executed Heads of Agreement could not exclude such statutory powers as the tribunals administering the Act may have to set aside or review those consent orders or to entertain other claims. The extent to which those tribunals give effect to the Executed Heads of Agreement remains a matter to be determined in accordance with the statutory powers exercised by them. Those powers, properly construed, may allow those tribunals to have regard to the Executed Heads of Agreement, but s 119 of the Act precludes the agreement, by its contractual force alone, controlling those powers. Whether or not those parts of the Executed Heads of Agreement, which may be read as purporting to preclude a review of the consent orders, or the making of future claims, are void for breaching s 119 of the Act is not a matter which arises on this appeal because, as Nicholson J explains, this matter is concerned only with those parts of the Heads of Agreement which preclude Mr Kowalski bringing any action with respect to his superannuation entitlements. Nor, for the same reasons, does any question arise in this matter as to the application of the general law principles of unjust enrichment, should Mr Kowalski choose to claim any statutory workers compensation entitlements.
Paragraph [4.3] of the executed HoA is not inconsistent with s 119 of the WRCA. It is a compromise of the dispute between MMAL and Mr Kowalski over the statutory rights conferred by the WRCA. As such, it is premised on the existence of those rights and therefore does not exclude or modify the operation of the WRCA. The WRCA contemplates the determination of disputes by orders of the kind made in the consent determination, whether or not a collateral payment is less, or for that matter more, than may have been awarded if the compromise had not been reached. The critical distinction for the purposes of s 119 of the WRCA is between agreements which resolve disputed claims of existing injuries and for consequential statutory entitlements, and agreements which preclude a worker from bringing claims for future injuries and impairments should they ever eventuate.
In the reasons for making orders against Mr Kowalski,[29] Blue J expressed the distinction differently. Blue J accepted that an agreement as to past entitlements under the WRCA may be consistent with s 119 of the WRCA, but held that an agreement to preclude any future entitlement on an existing or new claim would not be. On that reasoning the executed HoA was valid, and the consent determination properly made, as to any past income maintenance entitlement but not as to future payments or redemption or other lump sums. The delineation drawn by Blue J breaks down in cases in which there is a dispute as to whether there is any compensable injury at all. The consent determination in this case dismissed Mr Kowalski’s claim that his heart attack arose out of, or in the course of his employment. It is a necessary implication of the consent dismissal that Mr Kowalski had no compensable claim at all for his heart attack. There is no reason why MMAL and Mr Kowalski should be precluded from so agreeing. On that agreement there could be no claim for future payments.
[29] Attorney-General v Kowalski [2014] SASC 1 at [1062]-[1089].
It is not reasonably arguable that the compromise resulting in the consent determination contravened s 119 of the WRCA, having regard to the impugned decisions and their approval in the Full Court decisions of this Court in Kowalski v Mitsubishi Motors Australia Ltd.[30]
[30] [2005] SASC 433.
On the other hand, paragraph [4.1] arguably could, in some circumstances, contravene s 119 of the WRCA. That is because it precludes the bringing of future unidentified claims and it is not perfected by the making of an order in the SAWCT in accordance with the provisions of the WRCA. However, if [4.1] be inconsistent with s 119 of the WRCA it is plainly severable. The decision to be made on Mr Kowalski’s s 39 application is whether he should be given permission to bring further proceedings, the very purpose of which is to set aside a consent determination made pursuant to a compromise lawfully reached, and at least with respect to [4.3], unaffected by s 119.
We would hold that it is not reasonably arguable that [4.3] of the executed HoA is invalid by reason of inconsistency with s 119 of the WRCA.
Inutility
We interpolate here that MMAL also contended that there was no utility in giving permission to make s 88H applications with respect to the impugned decisions.
First, it contended that the SAET does not have jurisdiction to make any orders or declarations whatsoever in relation to the HoA. That may be accepted as far as it goes but it would nonetheless be necessary for the SAET to consider whether or not the executed HoA was valid and binding for the purposes of determining the s 88H application. If the HoA was binding, that in itself is a strong reason not to set aside the consent determination. If on the other hand it was non est factum, then the making of the HoA would not militate against setting aside the consent determination, if there were otherwise proper reasons to do so.
Secondly, MMAL contends that the consent determination of the conciliation officer is deemed to be a determination of MMAL rejecting Mr Kowalski’s heart attack claim and can therefore not be set aside as a decision of the SAWCT. That submission confuses the effect of s 97B of the WRCA. If the conciliation officer had made a determination accepting the claim, then MMAL could have reviewed it. Similarly, the consent determination rejecting Mr Kowalski’s claim, as a deemed decision of MMAL, could also be reviewed by Mr Kowalski. However, the consent determination itself was an order of the Tribunal. Whilst it existed it made an order which was deemed for those purposes to be a decision of MMAL. However, if it were set aside, it would either leave Mr Kowalski with an extant application for expedition before the SAWCT or at the very least with a claim which remained undetermined by MMAL. In either event, on the setting aside of the consent determination, Mr Kowalski had available to him proceedings by which to prosecute his heart attack claim.
Abuse by re-litigation
We have already found that Mr Kowalski did not have a reasonably arguable case that the HoA was non est factum or that [4.3] was contrary to s 119 of the WRCA. It follows that his application for permission should have been refused on an application of the first limb of the test articulated by Doyle CJ in the passages we cited in [34] above from Kowalski v Mitsubishi Motors Staff Superannuation Fund Pty Ltd.[31] However, permission ought also to have been refused on the second, re-litigation limb.
[31] [2006] SASC 159.
The second limb, of the discretion to give permission to a vexatious litigant to bring a proceeding, is an important aspect of the protection given by s 39 of the SCA. It is not uncommon for the original action brought by a vexatious litigant to have a reasonably arguable claim at its core. For that reason, pursuit of that claim in other actions may also appear to be reasonably arguable, particularly if, as Doyle CJ observed, the Court confines its intention to the proposed proceedings without considering the context of the historical litigation. It is for that reason that the second limb, as Doyle CJ said, is significant.
On the application for permission to appeal brought before Blue J, MMAL stressed the principles articulated by Doyle CJ in the cited passages. However, Blue J held that the onus of an application for s 39 permission on the second limb was a very low one:[32]
[87]Doyle CJ was not identifying the height of the threshold but rather its existence. Doyle CJ went on to conclude that the claim in that case was not adequately pleaded and it was unnecessary to consider the second aspect.
[88]It is not clear whether Mitsubishi submits that permission to institute the new proceeding should only be given if Mr Kowalski affirmatively established that it would not be an abuse of process by relitigation. If so, I reject that contention. For the reasons given above, it is only necessary that Mr Kowalski establish that the proceeding is reasonably arguable, including that his answer to any defence raised by Mitsubishi is reasonably arguable.
…
[98]The question on Mitsubishi’s application for permission to appeal is whether it is reasonably arguable that Mitsubishi can establish on appeal to the requisite standard (ie beyond reasonable argument) that it is an abuse of process by re‑litigation for him to contend in the new proceeding that he was not aware when he executed the 27 October version of the omission of the words “(income maintenance and medical expenses)” or the addition of the words “ex gratia”.
[32] Attorney-General (SA) v Kowalski (No 7) [2018] SASC 62 at [87]-[88], [98].
Blue J then found that the proposed s 88H applications would not amount to an abuse by re-litigation for the reasons identified above.
The converse of the ‘reasonably arguable’ onus standard adopted by Blue J on the permission application is to place an onus on a proposed defendant to the action for which permission is sought, to establish conclusively that the proposed proceeding is an abuse by re-litigation. That onus is heavier than the persuasive onus which a defendant bears in any action which can be brought as of right. The very purpose of s 39 of the SCA is to relieve proposed defendants from the obligation to, and the expense of, litigating proceedings in the same way as they would have to be litigated if brought as of right. Accordingly, it is, with respect, a mistake to understand the second limb identified by Doyle CJ as simply another element of the proposed cause of action which the s 39 applicant must show is reasonably arguable. In the cited passage, Doyle CJ did do more than identify the existence of a threshold. MMAL’s submission to this Court that Doyle CJ imposed a requirement on a s 39 applicant to show that the proposed action would not be an abuse of process by re-litigation should be accepted. That approach is consistent with the mischief to which s 39 of the SCA is addressed, which is to prevent a multiplicity of suits over the same underlying controversy.
There is a practical difficulty in framing the onus in the way it was framed by Blue J. The proposed defendant will not be present at the ex parte hearing. An applicant will not generally find it difficult to put a reasonable argument that the proposed action is not an abuse by way of re-litigation. The approach adopted by Blue J denies s 39 of the SCA of much of its utility.
There may be some persons who bring frivolous proceedings which have no basis at all simply to draw attention to themselves, or because, for unfathomable reasons, they enjoy interactions with courts, or for any number of other personality or psychological traits. However, the common experience of the courts is that many are brought because of a disappointment, and deep sense of grievance, at having failed in a claim which the litigant believes has merit. The purpose of the multiplicity of actions which are subsequently brought is to re‑litigate the claim in the hope that a judge who shares the disappointed litigant’s sense of injustice will eventually be found and the wrong righted. That particular mischief can only be addressed if the applicant on a s 39 permission application persuades the Court that the proposed proceeding is not an abuse of process by way of re‑litigation.
The s 39 permission sought by Mr Kowalski was, on its face, an attempt to re-litigate, because it sought permission to bring an application pursuant to s 88H of the WRCA. The very purpose of such applications is to set aside decisions which had been made adversely to the applicant, so that the underlying controversy may be re-litigated.
It is in the very nature of an exercise of judicial power that judicial orders are final and binding save for any appeal allowed by statute and by a review for legality. Exceptionally, courts and tribunals are given a limited power by statute or by rules of court made under statute to set aside decisions. That exceptional power is necessary to guard against fraud which, it has been authoritatively held, vitiates everything. The special powers may also allow judicial decisions to be set aside, depending on the width and validity of the rule, on the ground of other vitiating factors, but the principle of finality remains an important consideration.[33]
[33] Clone v Players Pty Ltd (in liq) (2018) 92 ALJR 399.
The permission granted by Blue J in this case was to bring an application invoking that very exceptional power. Moreover, the basis for the application which was said to be reasonably arguable by Blue J was not based on factual events or changes in the law discovered, or made, after the impugned decisions were handed down. Rather, the applications are based on contentions of fact and law which could and should have been made, and points taken, in the hearing which resulted in the adverse decisions which Mr Kowalski now wishes to have set aside.
The very mischief a vexatious litigant declaration is calculated to address is that issues are re-agitated on grounds not taken in the earlier proceedings.
Blue J did not apply the second facet identified by Doyle CJ in the way required by s 39 of the SCA. The sophisticated dissection of the impugned decisions essayed by Blue J demonstrates only that there were nice distinctions which might be drawn on in the s 88H application. However, that analysis did not address the fundamental point that the ultimate purpose was to re-litigate the non est factum issue and whether the consent determination should be set aside so that he might prosecute his heart attack claim which he had compromised for a substantial sum.
It is significant in this respect that in Mitsubishi Motors Australia Ltd v Kowalski,[34] Bleby J found all three of the impugned decisions to have been brought without any reasonable foundation. In making the second s 39 order on 28 January 2014 against Mr Kowalski, Blue J found otherwise. Blue J was not satisfied that the proceedings resulting in the impugned decisions were unreasonably brought.[35] However, the application for permission to bring proceedings to set aside the impugned decision was not brought until 8 January 2016. Permission to bring them was given on 13 February 2018. That delay was also a weighty reason to refuse permission.
[34] [2005] SASC 154 at [171]-[180], [183]-[187], [192]-209], [233]-[237].
[35] Attorney-General v Kowalski [2014] SASC 1 at [1062]-[1089].
In summary, the application for permission to bring the s 88H proceedings was made:
(a)nearly two decades after the consent determination; and
(b)over a decade after Bleby J had held that the underlying proceedings had no reasonable foundation.
The interests of justice and the finality principle in particular demand that s 39 permission be refused.
Moreover, there was another important discretionary consideration which Blue J failed to take into account. Mr Kowalski should not have been given permission without ensuring that he did not both enjoy a windfall gain by keeping the $200,000 he had received on execution of the HoA and seeking further awards of compensation. We acknowledge that the sum of $200,000 was also paid to Mr Kowalski’s wife. There may be a sense in which some of that money was therefore either compensation or an ex gratia payment to her. However, that is no reason not to require Mr Kowalski to repay the whole sum if he wishes to seek orders relieving him from his obligations under the HoA.
If permission were granted, it may also have been necessary to impose conditions minimising MMAL’s exposure to unnecessary costs. In cases such as this, the interests of justice may require that a grant of permission be conditioned on the making of arrangements to ensure that there be restitution of benefits received from the impugned decisions, and for the payment of the reasonable legal costs of the proposed defendant if the application fails.
Conclusion
The appeal is allowed. The order giving permission is quashed.