Mitsubishi Motors Australia Ltd v Kowalski - [2005] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MITSUBISHI MOTORS AUSTRALIA LTD v KOWALSKI
Judgment of The Honourable Justice Bleby
19 April 2005
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN LEGAL PROCEEDINGS
Application pursuant to s 39 Supreme Court Act to have defendant declared vexatious litigant – Plaintiff seeking stay of appeal in Workers Compensation Tribunal and order that defendant be prohibited from instituting further proceedings in any prescribed court without leave – Majority of proceedings said to be vexatious instituted in Workers Compensation Tribunal – Whether defendant instituted proceedings without reasonable ground – Discussion of relevant principles – Meaning of “proceedings” for purposes of s 39 – Whether vexatious proceedings instituted “persistently” – Order granted.
Supreme Court Act 1935 (SA) s 39; Workers Rehabilitation and Compensation Act 1986 (SA) s 42, s 43, s 63, s 86, s 86A, s 88H, s 89A, s 90, s 91A, s 92D, s 94A, s 95, s 97, s 97B, s 106A, s 114 and s 119; Enforcement of Judgments Act 1991 (SA) s 5; Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 (SA) s 16; Statutes Amendments (Courts) Act 2004 (SA); Supreme Court Rules (SA) r 5, r 11.01 and r 81.10; District Court Rules (SA) r 86.10; Workers Compensation Rules (SA) r 10(1) and r 23, referred to.
Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160; Arhill v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; R v Baines [1909] 1 KB 258; Rota v Turkuri [2001] 1 NZLR 715; Kay v Attorney-General for the State of Victoria [2000] 2 VR 436; Attorney-General for the State of Victoria v Weston [2004] VSC 314; Attorney-General v Wentworth (1988) 14 NSWLR 481; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302, applied.
Attorney-General v Collier [2001] NZAR 137; Brogden v Attorney-General [2001] NZAR 208; ACCC v Shell Co of Australia (1999) 161 ALR 686; Cheney v Spooner (1928) 41 CLR 532; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"vexatious", "reasonable ground", "proceedings", "persistently"

MITSUBISHI MOTORS AUSTRALIA LTD v KOWALSKI
[2005] SASC 154
BLEBY J:
The Application

The plaintiff applied, by inter partes summons filed on 18 March 2004, for the following relief:
“1.A declaration that the Defendant has persistently instituted vexatious proceedings as defined by section 39(1) of the Supreme Court Act1935 in that he has persistently instituted proceedings without reasonable ground.
2.A declaration that the Workers Compensation Tribunal established under the Workers Rehabilitation and Compensation Act 1986 is a court for the purposes of section 39 of the Supreme Court Act 1935.
3.An order pursuant to section 39 of the Supreme Court Act 1935 that the Defendant be prohibited from instituting proceedings in any Court (including the Supreme Court, the District Court, the Magistrates’ Court, Workers Compensation Tribunal and the Industrial Court), any application or other document, including any subpoena or summons to witness against the Plaintiff or any corporation related to the Plaintiff or any employee or agent of the Plaintiff without leave of the Court.
4.Such further or other order as the Honourable Court deems fit.”
The application was supported by affidavits filed on behalf of the plaintiff. Affidavits in opposition were filed by the defendant.
Section 39 Supreme Court Act 1935
At the time the proceedings were commenced, s 39 of the Supreme Court Act was in the following form:
“39.(1)    If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without leave of the court;
(b)an order staying proceedings already instituted by that person.
(2)    Where it appears to the Supreme Court or any court of the State that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3)    An order under this section remains in force (subject to variation by the court) –
(a)if a period for the operation of the order is fixed – until the expiration of that period or the revocation of the order (whichever first occurs);
(b)if no such period is fixed – until revocation of the order.
(4)    Where an order is made under this section, a copy of the order must be published in the Gazette.
(5)    For the purposes of this section, proceedings are vexatious –
(a)if instituted to harass or annoy, to cause delay, or for any other ulterior purpose;
or
(b)if instituted without reasonable ground.
(6)    A reference in this section to proceedings extends to both civil and criminal proceedings whether instituted in the court or some other court of the State.”
The section was amended by the Statutes Amendments (Courts) Act 2004. The amendment took effect on 1 September 2004. By the amendment sub-sections (2) and (6) were amended to read as follows:
“(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(6)In this section –
“prescribed court” means –
(a)     the Supreme Court; or
(b)    any other court of the State; or
(c)    the Workers Compensation Tribunal; or
(d)    any other tribunal of the State prescribed by the regulations;
“proceedings” means civil or criminal proceedings instituted in a prescribed court.”
Most of the proceedings said to be vexatious by the plaintiff are proceedings instituted in the Workers Compensation Tribunal (“the Tribunal”) constituted under the Workers Rehabilitation and Compensation Act 1986 (“the Compensation Act”). At a directions hearing during the course of these proceedings a Master ordered that the question “whether or not the Workers Compensation Tribunal is a court for the purposes of s 39 of the Supreme Court Act be heard and determined before any other issue in dispute”. It was further ordered that the question be referred to the Full Court. The Full Court gave its decision on 24 September 2004: Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302. Although the decision was handed down after the amendment, the argument had been heard before the amendment and was based on the provisions of s 39 as they were before the amendment. The Full Court answered the question:
“The Workers Compensation Tribunal is a ‘court of the State’ for the purposes of s 39 of the Supreme Court Act 1935”.
In view of the answer given it is not necessary to consider whether the amendments to s 39 had any retrospective effect. It is now clear that both before and after the amendment, the “proceedings” referred to in sub-section (1) include proceedings in the Tribunal whenever instituted. So far as it affects the resolution of this application, the amendment has made no material difference. It does not mean, as the defendant now contends, that the amendment has the effect of rendering the Tribunal not a court at any time preceding the amendment. It will be necessary to return to consider the meaning and application of some of the particular terms used in s 39.
The Course of the Trial
At the outset I invited Ms Layton QC, counsel for the plaintiff, to tender the affidavits and any other material on which she relied in support of the application. She tendered two affidavits of Mr Fountain together with numerous exhibits referred to in the affidavits. These were not objected to by the defendant. She also tendered a volume of some 52 decisions and judgments of Review Officers, of the Worker’s Compensation Tribunal, the District Court, the Supreme Court, the Federal Court of Australia and the Australian Industrial Relations Commission said to be relevant to the question of whether previous proceedings instituted by the defendant had been instituted vexatiously. Ms Layton did not rely on any other documentary or oral evidence.
As in the case of most of the proceedings discussed in these reasons, the defendant represented himself. After Ms Layton had tendered the material on which she relied, I invited the defendant to tender such evidence as he relied upon. A number of affidavits and other documents were tendered without objection from Ms Layton save only as to subsequent argument as to their relevance and weight.
The defendant attempted to tender one bundle of documents comprising correspondence passing between the defendant, the plaintiff and the plaintiff’s solicitors, extracts from reasons for decision of the Workers Compensation Tribunal and copies of documents said to be documents generated by the plaintiff or the WorkCover Corporation of South Australia in relation to the claims for compensation by the defendant. The tender was opposed by Ms Layton QC. I rejected the tender on the basis that those parts of the bundle which were not already included in the documents tendered were not relevant to the issues for determination in these proceedings.
During the course of tendering his documents the defendant applied to adjourn the hearing to enable further pre-trial proceedings to be taken by way of discovery by the plaintiff, for leave to interrogate the plaintiff and for other interlocutory matters to be attended to. No such orders had been sought in pre-trial proceedings. I refused the application to adjourn the trial because the defendant had had ample opportunity to pursue such interlocutory applications and because it appeared that the pursuit of such applications would not assist the orderly presentation of evidence relevant to the issues to be determined on the plaintiff’s application.
During the course of tendering his documents the defendant also indicated that he proposed to call Mr Tom Phillips and Mr Jeff Beer, senior executives of the plaintiff, to give oral evidence. He indicated that he proposed to do this after Ms Layton had completed her submissions. I explained to the defendant that it was inappropriate for addresses to commence unless and until all relevant evidentiary material was before the court, and that if the defendant wished to call oral evidence he should do so before counsel for the plaintiff addressed me on the issues arising from the evidence.
Mr Phillips and Mr Beer had been subpoenaed by the defendant to give evidence and to produce certain documents. An application by the plaintiff to set aside the subpoena came before a Master on 27 January 2005. The Master made no order on the application except that Mr Phillips and Mr Beer need not attend in response to the subpoena until the commencement of the defendant’s case at trial, subject to any other directions of the trial Judge. The Master did not dismiss the plaintiff’s application nor did he accede to it. Other than to give a type of “holding” direction, he did not deal with it. Upon the defendant intimating that he wished to call Mr Phillips and Mr Beer, counsel for the plaintiff renewed the application to set aside the subpoena. After hearing argument from Ms Layton and from the defendant I ordered that the subpoena be set aside for reasons which follow.
By virtue of r 81.10 of the Supreme Court Rules, the court may set aside a subpoena where it is vexatious, oppressive or an abuse of process of the court. The circumstances which may give rise to the application of those rules are many and varied. It will be oppressive, in the case of a subpoena to produce documents, where the documents should have been sought by a process of pre-trial discovery: ACCC v Shell Co of Australia Ltd (1999) 161 ALR 686; Cooper J at 696, [50]. That could well apply to this case, although for present purposes I leave that question aside. Similarly the sheer volume of documents required to be produced and the need to copy them could well in itself be oppressive, although this was not relied on by the plaintiff.
What is relevant for present purposes is that a subpoena will be vexatious or an abuse of process of the court where the documents sought to be produced by the witness are irrelevant: Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 or where they are not necessary for disposing fairly of the proceedings: Arhill v General Terminal Co Pty Ltd (1990) 23 NSWLR 545. Similarly, in the case of a subpoena to give oral evidence, the subpoena will be set aside where the witness could give no admissible evidence: R v Baines [1909] 1 KB 258; Rota v Tukuri [2001] 1 NZLR 715.
The documents which were sought to be produced by the witnesses under subpoena were as follows:
1.A recent computer printout of Kazimir Kowalski’s claims for worker’s compensation benefits, claims number 296584/1,2,3,4 and 5.
2.The files held by Mitsubishi, its servants and agents in respect of Kazimir Kowalski’s claims for worker’s compensation benefits, claims number 296584/1,2,3,4 and 5.
As explained by the defendant and as acknowledged by the plaintiff, the claims referred to related to all the defendant’s claims for worker’s compensation benefits made against the plaintiff under the Compensation Act. The particular claim numbers related to each of the alleged injuries the subject of various claims from time to time over a period of many years. In effect, the subpoena sought the production of computer printouts and all the plaintiff’s files concerning all the defendant’s claims made under the Compensation Act, most of which became the subject of proceedings now claimed by the plaintiff to have been vexatious. The number of proceedings discussed in these reasons will give some indication of the volume of the computer printouts and files in question.
The issue to be determined in these proceedings is whether the defendant has persistently instituted vexatious proceedings, and in particular, whether the many proceedings instituted by the defendant have been instituted without reasonable ground. That is an objective question to be determined by examining the number and nature of proceedings which have been instituted by the defendant. As Ormiston JA observed in Kay v Attorney-General for the State of Victoria [2000] 2 VR 436 at 437:
“If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events.”
Likewise, in Attorney-General for the State of Victoria v Weston [2004] VSC 314 Whelan J said, at [18]:
“In the absence of bad faith or improper purpose, the proper approach is to assess whether the proceeding was utterly hopeless. The reasons given and other observations made by a court upon the substantive determination of the proceeding may reveal vexatiousness in this sense, as may a successful strike-out application.”
See also Attorney-General v Collier [2001] NZAR 137 where the Full Court of the High Court of New Zealand observed, at [40]:
“The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way. Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points … may be reliable evidence in the circumstances of vexatiousness.”
Resolution of the question whether the defendant has issued proceedings vexatiously will not be assisted in any way by an examination of the files of the plaintiff or by any computer printout relating to those claims. I considered that the documents sought by the subpoena were therefore irrelevant.
The defendant argued that the documents sought to be produced would be evidence of an admission by the plaintiff that the defendant had rights open to him under the Compensation Act, and that those rights under that Act had not been extinguished. That would justify, he argued, the institution of the many proceedings by him against the plaintiff in the Workers Compensation Tribunal whereby he had sought to establish such rights.
Many of the proceedings relied on by the plaintiff as being vexatious are proceedings in the Tribunal in which such rights were claimed by the defendant and were denied to him. By seeking to argue for the continued existence of such rights, and therefore for a right to institute proceedings to enforce such rights against the plaintiff, the defendant seeks to challenge, in these proceedings, decisions of the Tribunal in which the defendant’s claims have been rejected. To allow such a challenge to occur would be to permit a right of appeal or review where the Act does not allow such a right. As will be seen, decisions of the Tribunal are final and there is no further right of appeal or review provided by the Compensation Act.
Furthermore, this Court has no power to determine the defendant’s rights to compensation in any event, even where they may not have been determined by the Tribunal. That is a jurisdiction vested exclusively by the Compensation Act in the Tribunal, subject only to supervision of the Tribunal’s process by judicial review in this Court on limited and well recognised grounds. But in those proceedings the merits of a worker’s claim cannot be determined by this Court.
As to the oral evidence to be led from Mr Phillips and Mr Beer, there was some difficulty in having the defendant identify precisely what evidence he wanted to lead from those two men. From various observations the defendant had made, it appeared that one of the matters he wished to question was the authority of the plaintiff’s solicitors to commence these proceedings on behalf of the plaintiff. The proceedings appear to have been regularly issued. By r 11.01, Supreme Court Rules the solicitor whose name appears endorsed on the summons shall be deemed to have authority to issue it unless the contrary is proved by a party on application to the Court. No such application has ever been made in these proceedings. There is no suggestion in any affidavit or any other material that the proceedings were issued without authority of the plaintiff. Nothing has been put which could give rise to the existence of any ground on which the authority deemed by r 11.01 could be challenged. It would be vexatious and an abuse of the Court’s process to embark upon a groundless inquiry of the senior executives of the plaintiff at the trial as to whether authority was given for the commencement of the proceedings.
Other observations of the defendant in the course of argument suggested that he wished to ask these officers whether the plaintiff was obliged to comply with the provisions of the Act. The expression of any opinion by senior company officers as to whether the plaintiff was obliged to comply with certain provisions of the Act is not relevant to the inquiry presently before me.
When pressed further as to the oral evidence to be led from the two proposed witnesses, the defendant said that he wished to ask them why the plaintiff had not redeemed various liabilities under the Act to which the defendant alleged he was entitled, why nothing happened in relation to a proposal to discuss a possible settlement, why the plaintiff maintained that there was no obligation to comply with certain provisions of the Act, why the plaintiff itself re-opened claims after it alleged that certain heads of agreement signed by the parties put an end to the defendant’s claims, whether consent from the WorkCover Corporation was obtained for entry into certain heads of agreement referred to below, why various forms were not filled out and a number of other questions relating to the practice and procedures of the plaintiff.

Assuming for present purposes that none of the questions proposed would constitute cross-examination of the defendant’s own witnesses, whether or not there has been compliance by the plaintiff with various statutory obligations, assuming also that to be relevant to the issues in this case, will not be assisted by the opinions of company officers as to why it is said the company did not so comply. In any event, as I have already pointed out, questions designed to establish an ongoing liability of the plaintiff to the defendant under the provisions of the Act are not relevant to a proper resolution of any of the issues arising in these proceedings. None of the evidence which the defendant asserted that he wished to lead from the intended witnesses could bear any relevance to the material issues.
Because none of the evidence, either documentary or oral, sought to be led from either Mr Phillips or Mr Beer could be said to be in any way relevant to an issue arising in these proceedings and could not otherwise be admissible, I considered that the subpoenas could serve no useful purpose. They were oppressive and an abuse of the process of the court. It was for these reasons that I directed that the subpoenas be set aside.
During the course of the numerous preliminary matters which required attention before Ms Layton QC began her submissions on the evidence, as well as during her submissions on the evidence, Ms Layton was subjected to unnecessary and at times offensive interruption by the defendant who often refused to accept my directions to allow Ms Layton to be heard in silence.
At the end of the first day of the hearing Ms Layton was addressing me on the evidence then before the Court. On the following morning, 22 February, I was made aware of two facsimile letters which had been addressed to me by the defendant and transmitted the previous evening. The first one transmitted at about 6.41 pm related to my setting aside of the subpoena addressed to Mr Phillips and Mr Beer and certain other submissions that he had made. It is not necessary to reproduce that letter. The second was transmitted at about 11.10 pm and was in the following terms:
“Re: Supreme Court action No.297 of 2004
Further to my facsimile to you of today’s date, I inform you and I put on record that as a result of your unwarranted hostile attacks upon myself today, I have become very stressed and upset, therefore, I shall not be able to attend the Supreme Court on Tuesday 22 February 2005 at 10.0 am.
In view of the above, I make the following further submissions.
1.At the time that MMAL commence action No.297 of 2004 the Workers Compensation Tribunal was not a prescribed Court, therefore, in March 2004 MMAL had no legal right to commence an action, pursuant to s39 of the Supreme Court Act 193, on the grounds that sub section 39(6) of the SCA was amended by Act 23 of 2004 and it only came into operation on 1 September 2004.
2.I have not instituted any proceedings in the WCT since sub section 39(6) of the SCA was amended by Act 23 of 2004 or since it came into operation on 1 September 204, therefore, as a matter of law the Supreme Court cannot find that I have instituted vexatious proceedings, in the WCT, without reasonable ground on the ground that I have not instituted any proceedings in the WCT since sub section 39(6) of the SCA was amended by Act 23 of 2004 or since it came into operation on 1 September 2004, therefore, MMAL’s application in action No.297 of 2004 is an abuse of process, therefore, it must summarily dismissed and an order for costs and disbursement be made on an indemnity basis either against MMAL or against Ms R Layton QC or Mr J Fountain.
I look forward to your reply in the next few days.”
The defendant did not appear on the second day of the hearing. Ms Layton QC opposed any adjournment of the hearing. Having heard Ms Layton I adjourned the hearing until 2.15 pm that day and directed that a letter be transmitted to the defendant’s facsimile address in the following terms:
“Re: Supreme Court Action No. 297 of 2004
I acknowledge receipt of your two letters dated 21 February, one faxed at 6.41 pm and the other faxed at 11.10 pm both on 21 February. They were received in Justice Bleby’s Chambers this morning.
Copies of the letters were made available to counsel for the plaintiff on the resumption of the hearing shortly after 10 am today. It is noted that no-one sought leave to appear on your behalf to seek an adjournment of the proceedings or to tender any medical evidence in support of your assertion contained in the second letter that you had become stressed and upset. It is also noted that you assert that that was your condition during the evening of 21 February, but that both your letters contain apparently cogent written submissions. The Court has received no indication of your condition today.
It is not clear from your letters whether you are seeking an adjournment of the hearing or whether you are content for it to continue in your absence, with the Judge taking into account the further submissions contained in the letters.
Having heard further submissions from Ms Layton QC as to the course that should be followed, his Honour adjourned the hearing until 2.15 pm this afternoon in order to enable you to clarify whether you are seeking an adjournment or not.
I am instructed to inform you that a mere assertion by letter that at some time on 21 February you were stressed and upset as a result of perceived hostility by the Court will be insufficient to warrant an adjournment. I am also instructed to inform you that Ms Layton QC on behalf of the plaintiff, has made it clear that if you propose to rely on any medical evidence concerning your ability to continue with the hearing, she will oppose any application for an adjournment unless the medical practitioner concerned is made available for cross-examination as to your present condition.
Would you please let me know by 1 pm today by way of return facsimile whether you are seeking an adjournment of the hearing and if so, on what grounds. Justice Bleby will hear further submissions at 2.15 pm today as to whether the hearing should be adjourned. You cannot assume that any request made merely by letter will be acceded to.
If you do seek an adjournment and that request is refused, the proceedings will continue in your absence until the completion of the plaintiff’s submissions. If you make no further submissions the matter will be decided on the material then before the Court.”
No response was received and Ms Layton resumed her submissions at 2.15 pm that day. At about 3.30 pm my attention was drawn to a facsimile letter from the defendant received by the Court shortly beforehand. The letter was in the following terms:
“Re: Supreme Court action No.297 of 2004
Further to my previous facsimiles to you, dated 21 February 2005, and to your Associates facsimile to me of today’s date, I inform you and I put on record that I have an appointment to see my treading psychiatrist on 28 February 2005 at 1.00 pm, therefore, I formally seek an adjournment of the proceedings in action No.297 of 2005 until after that date.
If my request for an adjournment is refused and if I am prevented from making oral submissions to you then it shall be quite obvious to the ordinary and the reasonable man that you are bias at law and that you are deliberately and consciously attempting to pervert the course of justice in this matter.
In view of the above, I make the following further written submissions …”
There followed a repeat of the submission contained in the second letter of the previous day. I considered that there was no proper ground on which to grant an adjournment and the hearing proceeded. After the Court adjourned that day I directed that a letter be sent by facsimile to the defendant informing him that the hearing had resumed at 2.15 pm that day, that his written request for an adjournment had been refused, that the hearing would resume at 10.15 am on the following morning and that it was likely that Ms Layton QC would complete her submissions some time on that day. He was informed that if no further submissions were made, judgment would be reserved.
On the resumption of the hearing on the following (third) day, the defendant attended. He did not appear to be under any disability. He remained for the duration of the hearing, commenced his submissions in the afternoon of the third day and completed them on the following day.
When he was present the defendant’s conduct during the hearing demonstrated little respect on his part for the Court. He was at times rude and insulting both to counsel and to the Court, such as would have warranted proceedings for contempt. His attacks on the judicial system of this State were persistent and widespread. However, I considered that the interests of justice would, in this instance, best be served by ignoring such behaviour save when it became necessary to deal with unwarranted interruptions and speaking over both counsel and myself and when the defendant refused to listen to or observe any directions I endeavoured to give. Whilst such behaviour cannot go unnoticed, I have not allowed it to influence my judgment in the consideration either of the plaintiff’s case or the matters raised in opposition by the defendant. I have done my best to record the defendant’s submissions as I understand them, although they were at times disjointed, misconceived and confused. I will nevertheless address those points in due course.
The Workers Rehabilitation and Compensation Act
Because most, but not all, of the proceedings said to be vexatious were proceedings in the Workers Compensation Tribunal, it is necessary to refer briefly to the position of the plaintiff under that Act and to some of the relevant provisions of the Act in order to understand the nature of those proceedings.
The plaintiff was at all material times an exempt employer under the Compensation Act. This meant that it was entitled, by virtue of s 63 of the Compensation Act, to exercise certain powers and discretions which would otherwise be exercised by the WorkCover Corporation of South Australia, the body appointed under the Act to administer the workers compensation scheme. Among the powers and discretions which it could exercise were the establishment of rehabilitation programs and rehabilitation and return to work plans for injured employees, the making of determinations concerning entitlement to weekly payments of compensation, discontinuance of weekly payments and review of weekly payments, the assessment of a lump sum by way of compensation for loss of future earning capacity, the assessment of a lump sum for non-economic loss by reference to the table contained in schedule 3 of the Act and determination of a claim for compensation. However, by s 63(3aa) an exempt employer must notify the WorkCover Corporation of its intention to make an assessment for a lump sum in respect of loss of future earning capacity, and must not proceed to make the assessment except with the Corporation’s consent. By s 106A, a payment by an employer to a worker does not constitute an admission of liability or estop a subsequent denial of liability.
As in the case of a decision of the WorkCover Corporation, most decisions of an exempt employer of the type to which I have referred are what the Compensation Act describes in s 89A as “reviewable decisions”. A person with a direct interest in a reviewable decision may lodge a notice of dispute with the Registrar of the Tribunal. This requires the decision to be reconsidered by the compensating authority which may then vary or confirm the decision. If the claimant is still dissatisfied the dispute must be referred for conciliation: s 91A and Part 6A, Division 4. If conciliation fails the conciliator must refer the dispute to the Tribunal for arbitration or for judicial determination: s 92D. For the purpose of making a judicial determination, the Tribunal will usually be constituted of a single presidential member, but the President may direct that a particular dispute should be referred directly to a Full Bench of the Tribunal: s 94A.
Section 95 provides that a party (other than the compensating authority) is entitled, subject to Part 6A of the Act and to limits prescribed by regulation, to an award against the compensating authority for the party’s reasonable costs of resolution of the dispute by the Tribunal. However, s 95(3) provides:
“(3)If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may –
(a) decline to make an award of costs in favour of the party and may further ( if it thinks fit) make an award of costs against the party; or
(b) reduce the amount of the award to which the party would otherwise have been entitled.”
Part 6B of the Act confers a special jurisdiction on the Tribunal where a worker believes that there has been undue delay in deciding a claim or other matter affecting the worker. The worker may then apply to the Tribunal for expedited determination of the matter: s 97. Section 97B relevantly provides:
“(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 compensation authority; and
(b)    is a reviewable decision.”
It is not necessary, for present purposes, to refer to the various sections governing the procedures of the Tribunal. They are referred to in some detail in the judgment of Duggan J in the decision of the Full Court to which reference has already been made: Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302. It is merely necessary to note that an appeal lies, but only on a question of law, against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal (s 86), and that the Tribunal constituted of a presidential member or a conciliation and arbitration officer to whom the President has delegated the power may amend or set aside a judgment or order of the Tribunal by consent of the parties, in order to correct an error or “if the interests of justice require that the judgment or order be amended or set aside”: s 88H.
A Full Bench of the Tribunal may state a case on the question of law for the opinion of the Supreme Court (s 86A), but there is no other right of appeal. Section 88I provides:
“No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except –
(a)as provided in this Act; or
(b)in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”
Because they are matters on which the defendant relies by way of defence, it is also necessary to set out the provisions of s 114 and s 119 of the Compensation Act:
“114 - Certain payments not to affect benefits under this Act
Compensation provided to a person under this Act shall not be reduced or otherwise affected by –
(a)     an ex gratia payment; or
(b)    an accident insurance payment; or
(c)    a payment or benefit of a class prescribed by regulation for the purposes of this section.
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.”
Instituting proceedings
Section 39 of the Supreme Court Act is concerned with the institution of vexatious “proceedings”. Section 39(6), whether before or after the amendment, has provided that that includes both civil and criminal proceedings. Otherwise, the term has not been defined in the Supreme Court Act. The term is defined in r 5 of the Supreme Court Rules for the purpose of the Supreme Court Rules themselves, but that cannot influence the proper determination of the meaning of the expression used in the Supreme Court Act. When speaking of the expression in Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 Duggan J made the following observation at [36]:
“The terms “proceeding” and “proceedings” are used in a broad sense in the Supreme Court Act. As in the case of the Supreme Court Act 1986 (Vic) , they refer to “a vehicle by which the jurisdiction of the court is invoked and not to the subject matter of a justiciable dispute”: Braeside Bearings Pty Ltd v HG Brignell & Associates [1996] 1 VR 17 at 20. See also Cheney v Spooner (1928) 41 CLR 532 at 536.”
In the passage referred to in Cheney v Spooner, Isaacs and Gavan Duffy JJ described the word as used and undefined in s 16 of the Service and Execution of Process Act1901-1924 as “merely some method permitted by law for moving a Court or judicial officer to some authorised act, or some act of the Court or judicial officer”.
In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Yeldham J at 488 considered, after a review of some authorities, that taking interlocutory proceedings in the course of an action instituted by another person which is still current were probably not within the expression to “institute … proceedings” in s 84 of the Supreme Court Act 1970 (NSW). Nevertheless, he considered that it was the substance rather than the form of the proceedings to which regard must be had for the purpose of determining whether they were vexatious.
In Attorney-General for the State of Victoria v Weston [2004] VSC 314 Whelan J discussed a number of authorities which appeared to justify the conclusion he reached at [13]:
“The conclusions that I draw from these authorities are that a person institutes a proceeding for the purposes of s 21 (Supreme Court Act 1986 (Vic)) when he or she files an originating process, and also where he or she:
(1)makes a counterclaim in a proceeding,
(2)appeals from a final determination in a proceeding, or
(3)seeks to set aside a determination in a manner which is in substance an attempt to appeal or relitigate a matter otherwise finally determined.
Interlocutory applications, and appeals on such applications, do not, in the ordinary case, constitute the institution of a proceeding. Where interlocutory applications are in substance an attempt to appeal or re-litigate a matter otherwise finally determined, they fall within the third category above and are to be considered the institution of proceedings.”
Most of the proceedings in question in this case are proceedings in the Workers Compensation Tribunal. In some cases they were instituted by the defendant filing a notice of dispute which, as Duggan J observed in Mitsubishi Motors of Australia Ltd v Kowalski [2004] SASC 302 at [37], amounts to the institution of civil proceedings in the Tribunal.
Some of the proceedings alleged to be vexatious were appeals by the defendant to a Full Bench of the Tribunal against the determination of a single member. For the purpose of s 39 of the Supreme Court Act the institution of such an appeal is properly regarded as a proceeding.
A number of decisions of the Tribunal to which reference will be made were made not in the course of proceedings instituted by the filing of a notice of dispute or on appeal but in exercise of the Tribunal’s special jurisdiction under Part 6B of the Compensation Act. In those cases the defendant, where the plaintiff had not made a decision about the defendant’s claim for compensation, made application under s 97 of the Compensation Act for an expedited determination of the matter. The defendant argued that these were not “proceedings” for the purpose of s 39 of the Supreme Court Act. He founded that argument on the statement of Duggan J referred to above that the filing of a notice of dispute did constitute the institution of proceedings in the Tribunal and, by inference, was the only method of instituting such proceedings. However, the Full Court did not say or infer that the filing of a notice of dispute was the only method of commencing proceedings in the Tribunal. The jurisdiction of the Tribunal can also be invoked by the making of an application for an expedited determination of the matter. It will be noted that under s 97B(1) the Tribunal, on such an application, may decide the matter itself. The mere fact that, under sub-section (3), such a decision is to be treated as a decision of the relevant compensating authority for the purpose of its becoming a reviewable decision does not mean that it is not also a decision of the Tribunal or that the proceedings giving rise to such a decision are not proceedings for the purpose of s 39 of the Supreme Court Act. In my opinion they are.

Other proceedings in the Tribunal which were argued by the plaintiff to be vexatious included proceedings under s 88H of the Act on an application to set aside a judgment or order of the Tribunal. Where instituted by the defendant, they too are proceedings which could be vexatious for the purpose of s 39 of the Supreme Court Act.
It follows that proceedings in the Tribunal which may be examined for the purpose of s 39(1) of the Supreme Court Act include proceedings the subject of a notice of dispute lodged by the defendant under s 90 of the Compensation Act, an application for expedited determination of a matter under s 97, an application under s 88H of the Act to set aside a judgment or order of the Tribunal and an appeal to a Full Bench of the Tribunal against a determination made in any of those proceedings.
One of the proceedings attacked by the plaintiff as being vexatious is an appeal against the decision of a single judge of this Court to the Full Court, being proceedings resolved by decision No.18 below. Those are proceedings which are capable of being vexatious for the purpose of s 39(1) of the Supreme Court Act. Another application in this Court which I regard as separate proceedings for the purpose of s 39(1) of the Supreme Court Act was an application made to the Full Court for reversal of a costs order made at the conclusion of the hearing of a different appeal to the Full Court (see decision No.16 below).
Another proceeding alleged to be vexatious is that initiated by an application by the defendant in the District Court for further and better discovery by the plaintiff, a non-party in the District Court proceedings which were brought by the defendant against his former solicitors (see decision No.24 below). There had been an earlier application for non-party discovery against the plaintiff which had been dealt with. The defendant complained that the plaintiff had not complied with the District Court’s previous order. Although interlocutory in nature, the proceedings sought to reagitate matters which had been decided on the earlier occasion. It was an application brought against the plaintiff which was not a party to or involved in the principal litigation. In my opinion those features distinguish that application from those referred to by Whelan J in Weston’s case (supra) as being interlocutory applications “in the ordinary case”. In my opinion, those proceedings may properly be alleged to be vexatious proceedings for the purpose of s 39(1) of the Supreme Court Act. It follows that the subsequent appeal proceedings against that decision (see decision No. 26 below) brought by the appellant should also be treated as separate proceedings for the purpose of s 39(1).
Subsequently, the plaintiff in these proceedings issued an examination summons in the District Court against the defendant pursuant to the Enforcement of Judgments Act 1991 in respect of an outstanding order for the payment of costs against the defendant. The defendant made an application seeking orders pursuant to r 86.10 of the District Court Rules that the summons be rescinded, discharged or suspended. Proceedings based on that application (see decision No.31 below) are also capable, in my opinion, of being regarded as vexatious for the purpose of s 39(1) of the Supreme Court Act, as is the appeal against the resultant decision (see decision No.32 below) and a subsequent application for reconsideration of the order, the appeal against that decision and an appeal against the order of the District Court made under s 5(1)(a) of the Enforcement of Judgments Act.
Many of the proceedings to which I have referred may be interlocutory in nature. However, in each case they seek to reverse, qualify or relitigate a ruling or determination previously made, and thereby may fall within the category of proceedings which s 39 of the Supreme Court addresses.
There have been decisions of other courts and tribunals placed before me which are not alleged to be vexatious or which, being decisions of a court or tribunal of the Commonwealth, cannot be the subject of proceedings under s 39(1) of the Supreme Court Act. Such decisions are nevertheless relevant as providing a contextual background against which the defendant has instituted proceedings in a court of this Stage and which are the subject of challenge by the plaintiff.
Vexatious proceedings
It is unhelpful to embark upon an analysis of what other courts have decided constitutes vexatious proceedings. Section 39(5) of the Supreme Court Act provides an exhaustive definition of what constitutes vexatious proceedings for the purpose of the section. Each paragraph of the definition requires the court to examine the circumstances surrounding the institution of the proceedings. It is not concerned with the manner in which the defendant conducted himself during the proceedings save to the extent that that may be an indicator of whether the proceedings were instituted for a purpose described in para.(a) of sub-section (5), or in order to ascertain whether there was any reasonable ground for instituting the proceedings. If the proceedings are utterly hopeless they will satisfy that description: Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [22]. If the proceedings have no prospect of success, or could have been or were in fact struck out as disclosing no reasonable cause of action, it is likely that they will be held to have been commenced vexatiously. Most of the proceedings alleged by the plaintiff to be vexatious are said to have been instituted without reasonable ground. However, some of the plaintiff’s allegations venture into the territory covered by para.(a) of sub-section (5).
It will have been noted from the particulars contained in the inter partes summons that the plaintiff was only alleging that the proceedings were instituted without reasonable ground. The summons did not allege a purpose falling within para.(a) of sub-section (5). Notwithstanding that, the plaintiff also alleges that the application for further and better discovery in the District Court, the subject of decision No.24 below, was issued for the ulterior purpose of obtaining access to documents for use in other proceedings in the Workers Compensation Tribunal, being a purpose referred to in para.(a) of sub-section (5). That is not a proceeding which was particularised in the plaintiff’s affidavits filed in lieu of the statement of claim. While there may be some substance in the plaintiff’s argument that the proceedings were in fact issued for an ulterior purpose, in the circumstances I propose to confine my examination in respect of all of the proceedings in question to a consideration whether the proceedings were instituted without reasonable ground. It may well be that, on analysis, the issuing of proceedings for an ulterior purpose indicates in itself that they were instituted without reasonable ground.
The proceedings – introduction
In the light of these preliminary observations, it is now necessary to examine the various proceedings which the defendant has instituted against the plaintiff and to determine whether, in each case, they were instituted vexatiously.
The proceedings fall into two convenient periods. From 1989 onwards, the plaintiff alleges a number of work related injuries which became the subject of proceedings in the Workers Compensation Tribunal. The plaintiff does not allege that all of these were vexatious. However, by October 1998 there were many outstanding proceedings concerning these claims, some of which the plaintiff alleges were vexatious. In October 1998 the parties entered into a formal mediation with a well-known South Australian Queen’s Counsel as mediator. That resulted in certain heads of agreement being reached and signed by both parties. The plaintiff alleges that the resultant agreement put an end to any further claim that the defendant had against the plaintiff arising out of his employment by the plaintiff. Notwithstanding that agreement, the defendant later instituted many proceedings designed to overcome the terms of that agreement and to renew his claims for compensation for the various injuries which he alleged had occurred. It is therefore convenient first to consider the proceedings which had been instituted prior to the mediated agreement, then to review the terms of the heads of agreement entered into, and then finally to consider the proceedings subsequently instituted. Because there are so many proceedings involved it is convenient to identify them, where they are the subject of the decision of a court or tribunal, by reference to a consideration, in chronological order, of the decisions concerned.
The injuries
In order to understand the decisions it is necessary to note the events alleged by the defendant to give rise to his claims. The defendant’s numerous claims against the plaintiff relate to various injuries he says he suffered during, or as a result of, his employment by the plaintiff. Those injuries are:
1.      An eye injury in December 1986;
2.      A right middle finger injury in May 1988;
3.      A back injury in May 1989;
4.      Emotional distress in August 1991;
5.      A heart attack in December 1997; and
6.      Bilateral carpal tunnel syndrome in December 2003.
The last two injuries occurred after the defendant had ceased working for the plaintiff.
The decisions
The plaintiff in this case has referred to, and in some instances sought to rely on, a number of decisions of various courts and tribunals in support of its application to have the defendant declared a vexatious litigant. For ease of reference all relevant decisions have been numbered in chronological order as set out in the table below and cross referenced to any subsequent appeal, costs decision, or decision of a lower court or tribunal where a matter has been remitted following an appeal. Some decisions which are not relevant to any issue in the proceedings have been omitted. Some decisions, also not listed, are relevant but were not produced. These are recorded and referred to in decision No.30.

No. Citation Decision Maker/ Forum Date Appeals/costs reference

1. Kowalski and Mitsubishi Motors Australia Ltd (911249) Determination No. 515/91 Review Officer Lovering
Workers Compensation Review Panel 06/09/1991

2. Kowalski v Mitsubishi Motors Australia Ltd Action No. 2760/90
Judge Lee

District Court
03/07/1992 8,10,15

3. Kowalski and Mitsubishi Motors Australia Ltd (00296584/02/01) Determination No. 0145/94 Review Officer Fender
Workers Compensation Review Panel 09/03/1994 4,5,7,20

4. In the matter of an appeal by Kowalski against the determination of a Review Officer which also concerns Mitsubishi Motors Automotive Ltd No. 89W of 1994
Gilchrist DP

Workers Compensation Appeal Tribunal
10/05/1995 5,7,20

5. Mitsubishi Motors Australia Ltd v Kowalski Judgment No. S5443 Cox, Perry and Williams JJ
Full Court of Supreme Court 06/02/1996 14,16

6. Kowalski and Mitsubishi Motors Australia Ltd (00296584/02/02, 02/03 & 02/06) Determination No. 0123/96
Review Officer Harbord

Workers Compensation Review Panel
12/03/1996 9,18

7. In the matter of an appeal by Kowalski against the determination of a Review Officer which also concerns Mitsubishi Motors Automotive Ltd (No. 2) No. 89W of 1994 Gilchrist DP
Workers Compensation Appeal Tribunal 06/08/1996 20

8. Kowalski v Mitsubishi Motors Australia Ltd Judgment No. D3480 Judge Wilson
District Court 07/08/1996 10,15

9. Mitsubishi Motors Australia Ltd v Harbord and Kowalski Judgment No. S5895 Debelle J
Supreme Court 21/11/1996 18

10. Kowalski v Mitsubishi Motors Australia Ltd Judgment No.D3543 Judge Lee
District Court 23/12/1996 15

11. Kowalski v Mitsubishi Motors Australia Ltd (No. 3009 of 1996) Thompson DP
Workers Compensation Tribunal 19/02/1997 12

12. Kowalski v Mitsubishi Motors Australia Ltd (Costs) (No. 3009 of 1996) Thompson DP
Workers Compensation Tribunal 19/02/1997

13. Kowalski v Mitsubishi Motors Australia Ltd (No. 185 of 1992) Judge McCusker
Industrial Relations Court 11/04/1997

14. Mitsubishi Motors Australia Ltd and Kowalski Action No. 1186 of 1995 Judge Kelly
Supreme Court 11/04/1997 16

15. Kowalski v Mitsubishi Motors Australia Ltd Action No. 2760 of 1990 Master Kelly
District Court 23/04/1997

16. Mitsubishi Motors Australia Ltd v Kowalski Action No. 1186 of 1995 Cox, Perry and Williams JJ
Full Court of Supreme Court 01/05/1997

17. Kowalski and Mitsubishi Motors Australia Ltd (00296584/03/01, 01/05) Determination No. 136/1997 Review Officer Harbord Workers Compensation Review Panel 14/05/1997 19

18. Mitsubishi Motors Australia Ltd v Harbord and Kowalski
Judge No. S6239 Doyle CJ, Matheson and Olsson JJ Full Court of Supreme Court 15/07/1997

19. Kowalski and Mitsubishi Motors Australia Ltd (00296584/03/01, 01/05) Determination No. 178/1997 Review Officer Harbord Workers Compensation Review Panel 01/08/1997

20. In the matter of an application by Kowalski No. 89W of 1994; In the matter of an appeal by Mitsubishi Motors Australia Ltd No. 47W of 1995 Gilchrist DP Workers Compensation Appeal Tribunal 04/08/1997

21. Kowalski v Mitsubishi Motors Australia Ltd Action No. 548 of 1997 Magistrate Gun Industrial Relations Court 22/01/1998

Mediated Settlement 26/10/1998

22. Kowalski v Mitsubishi Motors Australia [2000] SAWCT 2 (No. 4163 of 1998) McCouaig DP
Workers Compensation Tribunal 09/02/2000 23,25,27

23. Kowalski v Mitsubishi Motors Australia [2000] SAWCT 123 (No. 4163 of 1998) Jennings P, Parsons DP and Gilchrist DP
Full Bench of Workers Compensation Tribunal 15/08/2000 25,27

24. Kowalski v Sim & Ors Action No. 957 of 1996 Master Rice
District Court 03/07/2001 26,28,31,32, 33,35,36,39, 41

25. Kowalski v Mitsubishi Motors Australia [2001] SAWCT 93 (No. 4163 of 1998) McCouaig DP
Workers Compensation Tribunal 14/08/2001 27

26. Kowalski v Sim & Ors Action No. 957 of 1996 Judge Lowrie
District Court 13/09/2001 28,31,32,33, 35,36,39,41

27. Kowalski v Mitsubishi Motors Australia [2001] SAWCT 102 (No. 4163 of 1998) McCouaig DP
Workers Compensation Tribunal 13/09/2001

28. Kowalski v Sim & Ors Action No. 957 of 1996 Master Rice
District Court 30/10/2001 31,32,33,35, 36,39,41

29. Kowalski v Sim & Ors Action No. 957 of 1996 Judge Anderson
District Court 21/03/2002

30. Kowalski v Mitsubishi Motors Australia [2002] SAWCT 76 (Nos 4163/1998; 10W/2000; 2228/2001; 5879/2001; 8059/2000; 4174/1998; 4961/1998; 4529/1998; 132/2002) Jennings P, Cawthorne DP and McCusker DP
Full Bench of Workers Compensation Tribunal 19/02/2002

31. Kowalski v Sim & Ors Action No. 957 of 1996 Master Norman
District Court 31/10/2002 32,33,35,36, 39,41

32. Kowalski v Sim & Ors Action No. 957 of 1996 Judge Bright
District Court 04/12/2002 33,35,36,39, 41

33. Kowalski v Sim & Ors Action No. 957 of 1996 Master Norman
District Court 28/01/2003 35,36,39,41

34. Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 4 (No. 5871/2002) Gilchrist DP
Workers Compensation Tribunal 03/02/2003 38

35. Kowalski v Sim & Ors Action No. 957 of 1996 Judge Lee
District Court 05/03/2003 36,39,41

36. Kowalski v Sim & Ors Action No. 957 of 1996 Master Norman
District Court 12/03/2003 39,41

37. Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 48 (No. 1539/2003) McCouaig DP
Workers Compensation Tribunal 07/05/2003

38. Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 100 (No. 5871/2002) Cawthorne DP, McCusker DP and Parsons DP
Full Bench of the Workers Compensation Tribunal 11/09/2003

39. Kowalski v Sim & Ors Action No. 957 of 1996 Master Norman
District Court 28/11/2003

40. Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 24 (No. 3050/2003) Cawthorne DP, Thompson DP and McCouaig DP
Full Bench of the Workers Compensation Tribunal 11/03/2004

41. Kowalski v Sim & Ors [2004] SADC 34 Action No. 957 of 1996 Judge Lee
District Court 19/02/2004

42. Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 32 (No. 5956/2003) Jennings P
Workers Compensation Tribunal 25/03/2004 45

43. Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 35 (No. 9109/2003) McCouaig DP
Workers Compensation Tribunal 16/04/2004 44, 45

44. Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 48 (No. 9109/2003) McCouaig DP
Workers Compensation Tribunal 04/05/2004 45

45. Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 71 (No.s 5956/2003 and 9109/2003) Cawthorne DP, Gilchrist DP and Thompson DP
Full Bench of the Workers Compensation Tribunal 25/06/2004
The proceedings pre-mediation 1989 – 1998
Decision No.1

The first decision referred to by the plaintiff in these proceedings was the determination of Review Officer Lovering of the Workers Compensation Review Panel made on 6 September 1991. The Review Officer confirmed Mitsubishi’s decision to accept Mr Kowalski’s claim for income maintenance payments and related medical expenses for a period of 20 days during April 1991. Mitsubishi had initially refused the claim which related to leg cramps said to be attributable to the 1989 back injury, but later decided to reverse its decision.
The plaintiff does not submit that this proceeding was vexatious.
Decision No.2
Mr Kowalski brought a claim for damages in the District Court against Mitsubishi in relation to the 1989 alleged back injury. The matter was heard by Judge Lee who delivered his reasons on 3 July 1992. Mr Kowalski was unsuccessful. The alleged injury was not proved. Judge Lee found that “his evidence left many questions unanswered satisfactorily” and that “his version of events fails for want of the requisite degree of proof”.
Although the defendant was unsuccessful in this action the plaintiff does not claim that it was instituted vexatiously.
Decision No.3
Mr Kowlaski applied to the Workers Compensation Review Panel for a review of Mitsubishi’s decision to reject his claim of entitlement to compensation consequent upon emotional distress allegedly suffered in August 1991. Review Officer Fender made a determination on 9 March 1994 in which she rejected Mr Kowalski’s claim of entitlement to compensation with respect to emotional distress. The Review Officer found that Mr Kowalski suffered no emotional distress and that his alleged symptoms were contrived. Alternatively, if he did, the disability did not arise from his employment, and it was temporary only.
The plaintiff does not contend that this proceeding was instituted vexatiously by Mr Kowalski but counsel for the plaintiff did refer to the adverse findings of the Review Officer as to the motive of Mr Kowalski and his credibility as a witness. The Review Officer stated at p.6 of her reasons:
“As a consequence of my finding as to the absolute lack of credibility on the part of Mr Kowalski, I find myself unable to rely on any of his evidence, where uncorroborated, as a foundation for findings of fact on my determination.”
In making her findings the Review Officer also made reference to the findings of Judge Lee as to Mr Kowalski’s lack of credibility as a witness. I note the findings of the Review Officer and Judge Lee by way of explanation of the history of the disputes between the parties as they led to an appeal by Mr Kowalski (see decision No.4 below). Findings as to Mr Kowalski’s credibility in particular proceedings are not relevant to the question of whether he vexatiously instituted those proceedings against Mitsubishi without reasonable grounds. On the other hand, those findings may have a bearing on whether subsequent proceedings relating to the same issue are vexatious.
Decision No.4

In this proceeding Mr Kowalski appealed against the determination of Review Officer Fender made 9 March 1994 (decision No.3) on the basis of the Review Officer’s possible reliance on the findings as to credit of Judge Lee in the District Court (decision No.2). The appeal was heard by Gilchrist DP of the Workers Compensation Appeal Tribunal who gave reasons on 10 May 1995, allowing the appeal and remitting the matter back to a different Review Officer for determination.
Mr Kowalski was thus successful at this stage and the plaintiff does not contend that this proceeding was instituted vexatiously.
Decision No.5
Mitsubishi was successful in obtaining leave to appeal against the decision of Gilchrist DP made on 10 May 1995 (decision No.4) to the Full Court of the Supreme Court. The judgment of Cox J (Perry and Williams JJ concurring) was delivered on 6 February 1996. The appeal was allowed and the order of Gilchrist DP was set aside. The Full Court held that Review Officer Fender had not acted improperly in receiving Judge Lee’s reasons given in the District Court action. It was found that although the Review Officer had considered the findings of Judge Lee, she had not adopted any finding of Judge Lee and substituted it as her own. At p.5 Cox J said:
“[S]he went on to make her own critical examination of the evidence and her own assessment of the respondent’s credibility. There was nothing improper about that.”
The Full Court set aside the order of the Workers Compensation Appeal Tribunal (decision No.4) and ordered that the matter be remitted to the Tribunal to consider the other grounds of appeal Mr Kowalski’s solicitors indicated they wished to advance. Costs were awarded against Mr Kowalski.
Decision No.6
This decision made on 12 March 1996 by Review Officer Harbord of the Workers Compensation Review Panel relates to three applications made by Mr Kowalski for review of certain determinations made by Mitsubishi by virtue of its status as an exempt employer pursuant to the Compensation Act. All three determinations related to the alleged 1989 back injury. The first of Mr Kowalski’s applications was for review of the determination by Mitsubishi to refuse a lump sum payment for non-economic loss pursuant to s 43 of the Compensation Act. The second application sought a review of Mitsubishi’s determination to refuse weekly compensation payments and the third application related to Mitsubishi’s rejection of a claim for reimbursement of medical expenses relating to the treatment of cramps allegedly arising out of the back injury. Mitsubishi had given similar reasons for rejecting all three claims, namely that the injury did not occur and that by virtue of decision No.2 Mr Kowalski was estopped from asserting that it did. The applications for review were heard together. Review Officer Harbord found that:
“The exempt employer is estopped by virtue of its earlier acceptance dated 18 May, 1989 of the compensable disability, from now denying that the worker ever suffered a compensable disability to his back in May 1989.”
The Review Officer also held that:
“Neither the decision of Review Officer Lovering [decision No.1] nor the decision of Judge Lee of the District Court [decision No.2], gives rise to any issue estoppel in relation to the existence or causation of the compensable back disability.”
This decision solely concerned the determination of the preliminary issues relating to jurisdiction and estoppel and was not a final determination of the applications on their merits. Mr Kowalski was thus successful at this stage of the proceedings, and it is not claimed by the plaintiff that they were instituted vexatiously. However, the decision of Review Officer Harbord was later the subject of a successful appeal by Mitsubishi (see decision No.9) and a further, largely unsuccessful, appeal by Mr Kowalski to the Full Court (see decision No.18).
Decision No.7
In decision No.5 above, the Full Court of the Supreme Court remitted the matter back to the Workers Compensation Appeal Tribunal so that Mr Kowalski’s additional grounds of appeal against the decision of Review Officer Fender (decision No.3) might be determined. The matter came back before Gilchrist DP who published reasons on 6 August 1996. He found that the grounds of appeal could not be sustained and confirmed Review Officer Fender’s determination.
It is not claimed that this proceeding was vexatious.
Decision No.8
This ruling of Judge Wilson of the District Court, given on 7 August 1996, relates to the taxation of costs in the action before Judge Lee (decision No.2). Mr Kowalski was dissatisfied with the Master’s taxation and sought to have it reviewed by a Judge. He was unsuccessful. Judge Wilson found that the taxing Master’s exercise of his discretion was appropriate, his reasons were sound and he did not rely on any wrong principle.
The plaintiff does not argue that this proceeding was instituted vexatiously.
Decision No.9
This decision of Debelle J of the Supreme Court, dated 21 November 1996, relates to an application made by Mitsubishi for judicial review of Review Officer Harbord’s determination (decision No.6). At pp.6-7 of his reasons Debelle J found that, by virtue of s 106A of the Compensation Act, Mr Kowalski was not estopped from denying the existence of the back injury by having initially accepted the claim, nor by Review Officer Lovering’s determination (decision No.1) confirming that acceptance. At p.8 of the judgment Debelle J found that:
“Each of the three claims for compensation made by Mr Kowalski are founded on the allegation that on 9 May 1989 he slipped on oil at the Mitsubishi plant. Because the same allegation was the subject of the findings by Judge Lee, an issue estoppel arises which prevents Kowalski from asserting the contrary in the review proceedings.”
Debelle J, having determined that the reasons of the Review Officer disclosed errors on the face of the record, then made orders which had the effect of quashing the decision of the Review Officer and making certain consequential declarations.
Mr Kowalski later appealed against Debelle J’s decision to the Full Court (see decision No.18) but was, in essence, unsuccessful.
Decision No.10
This is a decision of Judge Lee of the District Court given on 23 December 1996. It relates to two applications made in August and November 1996 by Mr Kowalski which had the effect of seeking to have the decision of Judge Lee given on 3 July 1992 (decision No.2) re-opened. In support of his applications Mr Kowalski raised the arguments previously put to and rejected by Debelle J in decision No.9 concerning estoppel against Mitsubishi in relation to the alleged back injury. In his reasons for his decision Judge Lee said:
“Even if I were to disagree with Debelle J’s ruling, which I do not, I am bound to give effect to it.”
Mr Kowalski’s applications were dismissed.
This is the first proceeding which the plaintiff claims was instituted vexatiously by the defendant. The plaintiff submits that the institution of this proceeding before Judge Lee was inappropriate, that Mr Kowalski’s applications were groundless and further, that Mr Kowalski was fully aware that the grounds on which he based the application had already been decided against him by Debelle J.
It does appear that Mr Kowalski sought to undo the dismissal by Judge Lee of his back injury claim by attempting to re-open the District Court proceedings on grounds which had been rejected by Debelle J. If the defendant was dissatisfied with the decision of Debelle J, he should have appealed against that decision to the Full Court. In fact, he did so at a later stage (see decision No.18). The applications before Judge Lee were groundless and had no possible chance of success, as the Judge was bound to follow the decision of the Supreme Court.
Decision No.11
This matter came before the Tribunal as a result of an application by Mitsubishi to have a Notice of Dispute filed by Mr Kowalski stayed on the grounds that the Tribunal had no jurisdiction to deal with it. Thompson DP gave reasons for his decision on 19 February 1997. The basis of Mitsubishi’s application that the Notice of Dispute be stayed was that the Notice related to Mr Kowalski’s claim for compensation for emotional distress, which Mitsubishi submitted had been determined previously. Mitsubishi argued that Mr Kowalski was seeking to re-agitate the emotional distress claim by filing a new Notice of Dispute. Mitsubishi’s decision to reject the claim for emotional distress had been confirmed by Review Officer Fender in decision No.3. Although Mr Kowalski successfully appealed to Gilchrist DP in decision No.4, that decision was reversed by the Full Court in decision No.5 and ultimately Review Officer Fender’s determination was confirmed in decision No.7.
Thompson DP found that the Tribunal had no jurisdiction to entertain the Notice of Dispute because:
“The issues that are sought to be raised are res judicata.”
Mr Kowalski’s Notice of Dispute was then struck out.
The plaintiff argues that the defendant, in filing the Notice of Dispute, was unlawfully seeking to re-agitate his claim for compensation for emotional distress by re-arguing that which had already been decided against him. The plaintiff claims that the defendant instituted a groundless and therefore vexatious proceeding.
It is evident from the decision of Thompson DP that the defendant’s institution of the proceedings was groundless. Decision No.12, which relates to the costs of this action, further describes its institution by the defendant as unreasonable.
Decision No.12
This is another decision of Thompson DP of the Tribunal. It relates to the costs of the previous proceedings (decision No.11 above) in which it was held that the Tribunal had no jurisdiction to entertain Mr Kowalski’s Notice of Dispute seeking to re-agitate his emotional distress claim. In his reasons for the decision on costs Thompson DP criticised Mr Kowalski’s attempt to “re-open that which was closed” and commented:
“My impression in this case is that Mr Kowalski has refused to accept the adjudication of properly constituted Courts and Tribunals where they come to a conclusion contrary to his own views of his own entitlements, and the present proceedings are no more than an example of this.
…
I am of the view that Mr Kowalski has acted unreasonably in the bringing of and the conduct of these proceedings.”
He then went on to order that Mr Kowalski pay Mitsubishi’s costs. The only grounds on which he could do so were that, in his opinion, Mr Kowalski acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of the application: s 95(3), Compensation Act.
The findings of Thompson DP show that the defendant did institute these particular proceedings without reasonable grounds and hence, for the purpose of s 39 Supreme Court Act, vexatiously.
Decision No.13
This is a decision of Judge McCusker of the Industrial Relations Court of South Australia given on 11 April 1997. The circumstances giving rise to this proceeding were that in 1992 the parties attempted to enter into a settlement of all then outstanding claims by Mr Kowalski under both the Workers Compensation Act 1971 and the Compensation Act. In order to implement the settlement, consent orders were required to be made under both Acts. The consent of WorkCover under s 119 of the Compensation Act was also required. A consent order under the 1971 Act was made in the Industrial Court on 27 August 1992. Under that order Mr Kowalski was to be paid $23,000. That sum was paid to Mr Kowalski’s solicitors.
WorkCover Corporation declined to consent. As a result, further orders were made in the Industrial Court on 16 June 1993 setting aside the earlier orders and requiring Mr Kowalski to repay to Mitsubishi the sum of $23,000. At the time of the mediation referred to below, the sum of $9,118.45 had not been repaid by Mr Kowalski. Mr Kowalski, in the proceedings before Judge McCusker, contended that the orders were set aside without his instruction or consent. He sought to reverse the setting aside of the orders.
The success or failure of Mr Kowalski’s application depended partly upon a finding of fact, namely whether or not he did give instructions to his then solicitors to consent to the setting aside of the orders on 16 June 1993. Judge McCusker heard oral evidence from Mr Kowalski’s former solicitors and from Mr Kowalski himself.
The plaintiff claims that the defendant’s attempt, in effect, to have the original consent orders re-instated was vexatious. The plaintiff submits that it was a step taken without reasonable ground in circumstances where the settlement had clearly failed. The plaintiff sought to rely upon the findings by Judge McCusker that Mr Kowalski’s evidence was unreliable to show that Mr Kowalski instituted the proceedings without reasonable grounds. The plaintiff’s argument, as I understand it, is that if the only ground to support the institution of the proceedings was that Mr Kowalski’s solicitors had acted without his instructions and in fact they did have his instructions, then there was no basis for the proceedings.
Judge McCusker found that Mr Kowalski did give instructions to his solicitors, preferring the evidence given by the solicitors to the evidence of Mr Kowalski, which he found to be unreliable.
Judge McCusker found at p.13 that the circumstances in which the consent orders were set aside disclosed nothing that was “onerous or untoward or unfair to the worker”. He continued:
“I have no doubt that the worker felt annoyed with the failure of the settlement more so perhaps it coming in the wake of his reversal in the District Court proceedings. However, while he may have had antagonistic feelings and disappointment I do not regard those as material for my purposes so far as the proceedings he now brings.”
The Judge stopped short of finding that Mr Kowalski lied about the instructions he gave to his solicitors or finding that he instituted the proceedings as a result of his dissatisfaction with the outcome in the District Court.
With the benefit of hindsight, having seen the action which Mr Kowalski has taken since the mediation and settlement in October 1998, where he has sought to have those parts of the settlement which are adverse to him set aside, whilst not seeking to disturb the payment of money in his favour, it could be inferred that Mr Kowalski in this particular proceeding was attempting to achieve a similar outcome with the failed 1992 settlement, so that he could retain monies already paid out by Mitsubishi under the original consent order. However, whether the proceeding was instituted vexatiously should generally be determined in the light of information available and findings made at the time. It is only in a compelling case that I would draw such an inference based on the institution of subsequent unrelated proceedings.
In the light of the failure of the Judge to find that Mr Kowalski was lying, the inference must be left open that Mr Kowalski possibly genuinely believed that the original settlement was not conditional upon the consent of the WorkCover Corporation to the settlement, that he was mistaken or confused as to the instructions he gave his solicitor and that he believed he was entitled to retain the proceeds. It was the fact of the setting aside of the order by consent and the doing so, as the Judge found, on the instructions of the defendant that largely dictated the conclusion that the settlement was subject to a condition that could not be met.
In relation to this application I am not satisfied that the proceeding was instituted vexatiously.
Decision Nos.14 and 15
These are two decisions of Master Kelly of the District Court in two separate actions delivered on 11 and 23 April 1997 relating to costs. The plaintiff did not refer to these decisions nor does the plaintiff claim that they were in any way vexatious. However, it should be noted that in both proceedings Mr Kowalski sought a stay of execution on an allocatur for costs awarded against him. In both instances the Master refused to grant the stay.
Decision No.16
This is a decision of the Full Court of the Supreme Court (Cox, Debelle and Williams JJ) given on 1 May 1997. It is a costs decision flowing from the February 1996 judgment of the Full Court (decision No.5) in which an appeal brought by Mitsubishi was allowed and Mr Kowalski was ordered to pay Mitsubishi’s costs of the appeal and also certain costs reserved by a Master in relation to interlocutory hearings before him. Both parties, who were then represented by counsel, were heard as to the question of costs before the Full Court made its original order. However, Cox J had stated at the time that if counsel for Mr Kowalski received instructions to present an argument to have the costs order in relation to the interlocutory proceedings reversed, he could apply to have the matter listed again, at the risk of paying the costs thrown away by the supplementary hearing should that application be unsuccessful. More than a year passed before Mr Kowalski did make an application to the Full Court to have the costs order made in February 1996 reviewed. Mr Kowalski’s application was unsuccessful and Cox J at p.3 found that there was no justification for interfering with the original order that was made.
The plaintiff contends that the defendant’s application to have the costs order reviewed more than one year after it was made was instituted vexatiously and without reasonable grounds. Counsel for the plaintiff further pointed to the debate between Mr Kowalski and the bench which ensued after the Court dismissed his application. The plaintiff argues that this shows evidence of Mr Kowalski’s refusal to accept the orders of the Court made against him.
It appears Mr Kowalski did make some inflammatory and inappropriate comments after the dismissal of his application. His frustration with the course that his dispute with Mitsubishi had taken and with the decisions made against him was evident. However in these proceedings, I am not examining Mr Kowalski’s general attitude to the courts. I must merely look to whether the application was instituted without reasonable ground. Mr Kowalski advanced two arguments in support of his application. The first was whether the Court had the power to award costs against him under s 40 of the Supreme Court Act 1935, and in particular whether there was any restraint on that power by the operation of the Compensation Act as it stood at that time. Mr Kowalski’s second argument was that regardless of whether the Court had the power to make the order that it did, that it should not have awarded costs against him on the basis that there is a general policy in place in the workers compensation jurisdiction whereby workers should not be subjected to the “loser pays” principle as to costs. Both of Mr Kowalski’s arguments failed. Cox J also stated in his judgment that Mr Kowalski sought to put before the Court a large amount of irrelevant material in support of his first argument. However, on p.3 Cox J stated that he had “a deal of sympathy” with Mr Kowalski’s second argument.
Although Mr Kowalski’s arguments may have been weak, I do not believe that they could be described as completely groundless. Furthermore, despite a significant delay by Mr Kowalski in bringing the application, it was one the possibility of which was foreshadowed by the Court when it made its original order. For these reasons I do not find that this proceeding was instituted by the defendant without reasonable ground.
Decision No.17
This is a decision of Review Officer Harbord of the Workers Compensation Review Panel made on 14 May 1997. It relates to two applications made by Mr Kowalski, the first being for reimbursement of medical expenses and the second being for a lump sum payment for non-economic loss, both connected to the right middle finger injury. The Review Officer found at p.5 that Mr Kowalski did have “a minimal loss of function of the right middle finger” and equated the injury to a 2% permanent loss of function. The middle finger injury entitled Mr Kowalski to a lump sum payment for non-economic loss of $289.60. The Review Officer also ordered that Mitsubishi pay $155 in related medical expenses, being $122 for the costs of Mr Wicks, Orthopaedic Surgeon, and $33 being the cost of a consultation with Dr Hughes, General Practitioner.

Despite the claim of illness, which the defendant has relied upon during this hearing and in others as a tactic to delay and frustrate the proceedings, I do not accept that the defendant had any reasonable excuse for not adducing his evidence in its entirety at the outset. Although the defendant was unrepresented, by this stage he was a very experienced litigant. I consider his application to have been instituted without reasonable ground.
Decision No.40
This is a decision of the Full Bench of the Workers Compensation Tribunal (Cawthorne DP, Thompson DP and McCouaig DP) delivered on 11 March 2004. It is necessary to give some background information as to how the matter came before the Full Bench. On 28 April 2003 Mr Kowalski served a Notice of Injury on Mitsubishi claiming compensation for stress and anxiety allegedly caused by “the unreasonable conduct of the respondent in respect to my 1989 accepted compensable back injury”. Mitsubishi declined to make a determination and on 14 May 2003 Mr Kowalski applied to the Tribunal to expedite the determination pursuant to s 97. On 10 June 2003 Mitsubishi filed an application for directions seeking to have the s 97 application struck out as an abuse of process. The application was supported by an affidavit of Mr Fountain. The application was set down for hearing on 20 June 2003, however on 18 June 2003 Mitsubishi wrote to the President of the Tribunal inviting him to exercise his discretion pursuant to r 10(1) of the Workers Compensation Tribunal Rules and strike out the s 97 application. On 19 June 2003 the Registrar wrote to Mr Kowalski as follows:
“Please be advised that upon the request of the solicitors for the respondent, the President exercising the discretion available to him under Rule 10(1) of the Workers Compensation Rules 2001 (as amended) has withdrawn the assignment of this matter and directed me to strike out the proceedings in accordance with Rule 10(1). This matter is accordingly struck out and the Application for Directions listed for 9.40 am tomorrow, Friday 20 June 2003 in this matter is vacated.”
Rule 10(1) of the Workers Compensation Rules provides:
“Subject to any express provisions of the Act and the Rules, the President may assign any proceedings to any member of the Tribunal as may seem appropriate and may alter that assignment in order to resolve the proceedings more effectively. If the President is satisfied that a proceeding is vexatious, is an abuse of process or that there is other good reason such as the failure of the party lodging the proceedings to purge a contempt of the Tribunal or to pay a fine imposed as a result of a contempt, the President may decline to assign the proceedings and if the proceedings have already been assigned may withdraw that assignment and may direct the Registrar to strike out the proceedings.”
It is against the exercise by the President of his discretion under r 10(1) that Mr Kowalski then appealed to a Full Bench of the Tribunal on the grounds that the President did so without inviting input from him and thereby denying him natural justice.
The Full Bench found that the President was within his power in making the determination and indeed that based on the information he had before him the President’s decision was correct. However, as Mitsubishi did not object, the Full Bench then went on to hear and determine Mr Kowalski’s claim on its merits.
At the outset of the hearing Mr Kowalski requested that two members of the Bench disqualify themselves on the grounds of bias. That application was rejected. On p.12 of his judgment Thompson DP noted the inappropriate conduct of Mr Kowalski evident throughout the hearing including insulting references made to the members of the bench and to counsel for Mitsubishi. Thompson DPJcommented that had such remarks emanated from a legal practitioner it may well have led to a consideration of contempt.
Having considered the history of the dispute between Mitsubishi and Mr Kowalski and the submissions put forward by both parties, Mr Kowalski’s appeal was dismissed. At para.79 Thompson DP stated:
“I see no merit whatsoever in the appellant’s arguments. Considered afresh they lack substance. Considered in the light of previous decisions of this Tribunal both at the primary level and at the appellate level they are bound to fail.”
Clearly Thompson DP did not see the appeal as having any grounds whatsoever. However Cawthorne DP and McCouaig DP who gave a separate judgment considered that the question as to whether Mr Kowalski had been denied natural justice was “the only point on the appeal which has any substance”. Although Mr Kowalski was unsuccessful in the ultimate resolution of this question I do not consider that that particular aspect of the appeal can be categorised as groundless. The original notice of injury and the s 97 application which followed are another matter. Those were clearly unmeritorious and were instituted without reasonable ground. Therefore although the course which this matter eventually took gave rise to an arguable, even important, point as to the operation of the President’s discretion under r 10(1), the original proceedings should never have been instituted in the first place. They were struck out by the President because they were groundless, and on appeal that decision was found to be justified. I therefore consider that, while the appeal was not instituted vexatiously, the original proceeding was.
Decision No.41
This is the decision in the unsuccessful appeal to Judge Lee of the District Court by Mr Kowalski against the orders made by Master Norman in the examination summons proceedings (see decision No.39). The grounds of appeal appear to relate to the question whether Mr Kowalski could satisfy the judgment debt from the funds available in the Kowalski Family Trust, which funds included the proceeds of his settlement with Mitsubishi. Master Norman had found that he could and this finding was upheld by Judge Lee.
The plaintiff now submits that the appeal was unmeritorious and was instituted without reasonable ground. At para.10 of the reasons Judge Lee indicated that no material was put before him that would have persuaded him to consider a contrary view to that of the Master. At para.9 Judge Lee stated that “the appellant’s conduct in relation to the workers compensation proceeds, and in relation to other transactions, constituted an attempt by him to defeat his creditors, and Mitsubishi Motors in particular”. The defendant had already had ample opportunity in the course of the examination summons proceedings to put his arguments concerning the family trust before the court. This appeal raised no point beyond the argument put to Master Norman, which application itself was groundless. The appeal was merely a futile attempt to avoid or delay payment of the judgment debt. It was a groundless proceeding and vexatiously instituted.
Decision No.42
This is a decision of Jennings P of the Tribunal delivered on 25 March 2004. It relates to an action (No. 5956 of 2003) by Mr Kowalski seeking orders that he be entered into a rehabilitation program. Hearing of the matter was adjourned pending the outcome of Mr Kowalski’s appeal to the Full Bench in decision No.40 above. When it came back before the President he again exercised his discretion pursuant to r 10(1) and directed that the action be struck out. In doing so he stated, at para.6-8:
“Mr Kowalski is yet again in this matter attempting to re-open and relitigate matters that have been extensively litigated and in which rulings have been made against him…
The current matter is vexatious and is an abuse of process”.
I need not consider this proceeding further. It was, on the face of the application and in view of the previous history, quite clearly groundless.
Decision No.43
This decision of McCouaig DP of the Workers Compensation Tribunal, delivered on 16 April 2004, relates to file No. 9109 of 2003 and a Notice of Dispute lodged by Mr Kowalski seeking compensation for bilateral carpal tunnel syndrome allegedly caused by the “use of a pen, computer and computer mouse” whilst “writing up to 10-12 hours/day preparing legal submissions to claim for and receive compensation from Mitsubishi for my compensable disabilities.” Mitsubishi successfully applied to have the Notice struck out as an abuse of process.
In addition to the obvious difficulty Mr Kowalski faced in showing a causal connection between the alleged injury and his employment with Mitsubishi which ceased more than a decade prior to the claim, at the hearing counsel for Mitsubishi referred to the previous findings that Mr Kowalski had abused the process of the Tribunal. McCouaig DP found, at paras.7-8, that:
“The worker’s presentation of his case before me made it quite clear that he was again seeking, albeit this time by different means, to relitigate issues that have previously and conclusively been determined against him… His recent similar attempts have been declared by the Tribunal to be without merit and vexatious…
Even if the worker’s current claim is treated as a bona fide claim, reflecting a genuine belief by the worker that his recent experience of numbness in his fingers is compensable, no evidence or argument has been put forward by the worker to suggest that the claim could possibly succeed.”
The action initiated by the Notice of Dispute has been found to be an abuse of process and to have no prospect of success. There is no doubt that it was instituted without reasonable ground.
Decision No.44
This is the costs decision dated 4 May 2004 which follows decision No.43 above. McCouaig DP, in awarding costs to Mitsubishi, reiterated his earlier findings as to the attempts by Mr Kowalski to relitigate issues previously determined against him. At para.4 he stated, “I am satisfied that the worker’s actions in pursuing the matter were unreasonable, if not vexatious”. This merely confirms the conclusion that the action was instituted unreasonably.
Decision No.45
This is an appeal to the Full Bench (Cawthorne DP, Gilchrist DP and Thompson DP) of the Workers Compensation Tribunal by Mr Kowalski in relation to the previous three decisions (Nos.42, 43 and 44). He sought to challenge the decisions to strike out actions No. 5956 of 2003 and No. 9109 of 2003 and the award of costs against him. At the outset of the hearing Mr Kowalski applied for two of the Tribunal members to disqualify themselves. At the close of his submissions, he also belatedly requested to state a case to the Full Court of the Supreme Court. He was unsuccessful on all fronts, was again found to be abusing the process of the Tribunal, and had costs awarded against him.
The Tribunal noted that the issues Mr Kowalski sought to raise had been the subject of the earlier decision by the Full Bench (decision No.40 above) and that the continued prosecution of the actions which had been struck out plainly offended the doctrine of res judicata. The Tribunal expressed concern that Mitsubishi was being forced to incur legal fees to “maintain a position that has already been conclusively resolved in its favour” and that the limited resources of the Tribunal were being wasted on the processing and adjudication of unmeritorious claims. The Full Bench found that there was no special point of law or principle that would warrant stating a case to the Full Court of the Supreme Court. In conclusion the following observations were made at paras.53‑54:
“The appellant needs to understand that the decision of the Full Bench of the Tribunal in [2002] SAWCT 76 (decision No.30) is a final and conclusive decision and that notwithstanding his strongly held belief that the decision is wrong and that he should be permitted to pursue claims for compensation against the respondent in respect of the injuries and disabilities specified in the Agreement, his endeavours to re-litigate matters already determined through the initiation of further proceedings in the Tribunal are doomed to fail…
In our system of law, parties need to accept that once they have exhausted their appeal rights they must accept and adhere to the outcome of the litigation.”
The plaintiff now submits that this appeal was groundless and I agree. It was instituted vexatiously.
Proceedings in non-state courts and tribunals 1998 – 2005
In addition to the proceedings summarised above, counsel for the plaintiff referred to a number of actions instituted by the defendant in courts and tribunals not being courts to which s 39 of the Supreme Court Act applies. The plaintiff is well aware of the limited scope of the orders that can be made pursuant to s 39 and has only sought to bring these proceedings to the attention of the Court in order to demonstrate the full extent of the defendant’s seemingly endless pursuit of litigation against the plaintiff and those connected with the plaintiff. Towards the end of the plaintiff’s submissions concerning these additional proceedings, the defendant objected to reference being made to proceedings before the Legal Practitioners Disciplinary Tribunal on the ground that they would be irrelevant to the issues to be determined by this Court. I disagree that evidence of these additional proceedings is completely irrelevant to the plaintiff’s present application. It is important to consider the respective positions of the parties in the broad context of all of the litigation which has occurred. Certainly if the defendant had been successful in any of these other actions he would want the Court to have regard to that fact. However, the weight which can be given to the institution of such proceedings, and to the outcomes and findings therein, is necessarily much less than the weight which I have placed upon the decisions outlined above. They are relevant only to the extent that they form part of the background and history of the disputes between the parties, which background and history might, in a particular case, have some bearing on whether one or more of the proceedings the subject of s 39 were instituted vexatiously. Persistence in such proceedings may also be relevant to the exercise of the Court’s discretion to make an order under s 39 if it is satisfied that the defendant has persistently instituted vexatious proceedings within the meaning of s 39(1).
The first matter referred to by the plaintiff has already been mentioned in these reasons as it was contemplated by the parties being included in the October 1998 mediation. It is Federal Court action No.SG100 of 1997 in which Mr Kowalski sought an extension of time in which to bring unfair dismissal proceedings against Mitsubishi. The application was dismissed by von Doussa J on 16 October 1998 and the matter was not pursued any further.
The second decision referred to is that of Commissioner McCutcheon of the Australian Industrial Relations Commission published on 20 November 2001. Having previously discontinued his proceedings against Mitsubishi in the Commission following the mediated settlement, Mr Kowalski instituted a fresh application seeking relief for termination of his employment. It was dismissed on the basis that the matter had been resolved via the Heads of Agreement. Mr Kowalski’s arguments that the Heads of Agreement did not prevent him from taking fresh action against Mitsubishi or alternatively that Mitsubishi had not negotiated in good faith both failed, with the Commissioner finding at para.15 in relation to the latter claim that “there is simply no evidence before me that would sustain the assertion”.
The reasons of Commissioner McCutcheon show that the defendant, in attempting to re-agitate his claim, raised the same unsuccessful arguments in the Commission in relation to the Heads of Agreement as he did before the Workers Compensation Tribunal. This decision merely reinforces the conclusion as to the lack of merit in any of the subsequently instituted proceedings the subject of this application.
The next two decisions referred to relate to Federal Court action No.S190 of 2001 which was instituted by Mr Kowalski against Mitsubishi and Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd. The Court found that it had no jurisdiction to entertain the claim against the second defendant. Mr Kowalski’s application sought compensation and punitive damages arising out of the termination of his employment, which he alleged amounted to a constructive dismissal. He also wanted his entitlements determined on the basis that he ceased employment with Mitsubishi later than the accepted date of 16 March 1994. Mr Kowalski wanted to recover wages for the period from March 1994 until October 1998, notwithstanding that he did not present for work at all during this time and in fact instituted proceedings seeking reinstatement, thereby conceding that he was no longer employed. Again Mr Kowalski raised arguments in support of parts of the Heads of Agreement being set aside.
On 17 September 2002 Mansfield J, whose decision was upheld by the Full Federal Court (Ryan, Dowsett and Selway JJ) on 28 February 2003, dismissed Mr Kowalski’s application. At para.47 Mansfield J found:
“The applicant submitted at one point in his oral submissions that he wished to go behind the Heads of Agreement in this proceeding. But no evidence was adduced which could go the smallest distance towards establishing a ground on which the Heads of Agreement might be set aside…”
Mansfield J noted that Mr Kowalski had not actually brought proceedings directly seeking to set aside the Heads of Agreement and further that he was not proposing to repay the monies he received under the Agreement which would be a necessary precondition if the Agreement, or any part of it, were to be set aside. At para.51 Mansfield J concluded:
“The applicant’s claim against the Employer at common law, in the face of the Heads of Agreement, has no prospect of success. Any rights he may have had against the Employer arising from the termination of his employment on 16 March 1994 are expressed in the Heads of Agreement, or alternatively became converted into rights under the Heads of Agreement… It is ‘in full and final settlement’ of his entitlements. There is no room for any reading down of its terms.”
In dismissing Mr Kowalski’s appeal, the Full Federal Court at paras.16-17 stated the following:
“The appellant’s argument assumes that his rights are clear and uncontrovertible. But that is simply not true. At best they were fragile…
In these circumstances to view the Heads of Agreement as simply involving some diminution of the appellant’s statutory rights is to misunderstand the agreement reached.”
And at para.30
“We agree with Mansfield J that the executed Heads of Agreement provides a complete defence. In the absence of any disclosed basis for challenging that agreement the appellant has no prospects of success in his action and Mansfield J was correct to dismiss it.”
Despite these findings, the defendant has continued to argue in various forums that parts of the Heads of Agreement are invalid and should be set aside. He is unwilling to accept that his arguments have been found, on numerous occasions, to be misguided and wrong and so he pursues them relentlessly. The defendant also continues to assume that he is automatically and without question entitled to certain rights, for example to income maintenance, when this assumption is incorrect.
Over the course of the various proceedings involving the defendant, including the hearing of the present application, he has frequently made accusations of professional misconduct by his own former lawyers, by those representing the plaintiff by members of the Workers Compensation Tribunal and by members of the judiciary. He seems to believe that the entire South Australian legal profession is engaged in a conspiracy against him. On numerous occasions he has been warned that, were it not for special allowances which have been made for him as an unrepresented litigant, he would have been held in contempt.

The final matter to which counsel for the plaintiff referred was a decision recently handed down by the Legal Practitioners Disciplinary Tribunal, dated 22 February 2005. The decision relates to charges brought by Mr Kowalski against senior counsel for Mitsubishi, Ms Layton QC, and junior counsel and instructing solicitor, Mr Fountain. The charges against both practitioners were found to be frivolous and were dismissed. Furthermore the Tribunal found that Mr Kowalski had acted vexatiously in bringing the charges and intended to harass and annoy the practitioners. At para.50 of its reasons, the Tribunal concluded:
“The complainant became dissatisfied with the agreement he reached with Mitsubishi and has been frustrated in his attempts to set parts of it aside. He has resorted to baseless allegations of misconduct against counsel who appeared for his former employer. We dismiss the charge on the grounds that it is both frivolous and vexatious.”
Whether the vexatious proceedings were “persistently” instituted
As Roden J said in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492, “‘persistently’ suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”. That expression was adopted by Whelan J in Attorney-General for the State of Victoria v Weston (supra) at [20].
In the judgment of the New Zealand Court of Appeal in Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 the Court said, at [21]:
“What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.”
I am happy to adopt the approach taken in these cases. There has been a large number of cases instituted by the defendant against the plaintiff vexatiously. I have identified 30 such proceedings, 27 of which have been instituted in the period beginning about 12 months after the settlement agreement, and most of which have sought, in one way or another, to undo it. However, the defendant has also continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many occasions, being grounds on which he also resisted the making of an order in these proceedings. The defendant has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him. I have no hesitation in deciding that the proceedings which have been identified as being vexatious have been instituted persistently and that the plaintiff is entitled to the orders it seeks.
The defendant’s defences
It remains only to comment briefly on a number of matters which, in the defendant’s view, have justified the persistent institution of the proceedings and which he claims provide a defence to these proceedings. Some of these I have already dealt with. I deal with what remains in no particular order of importance.
The defendant claimed that the finding of Judge Lee in the District Court (decision No.2 above) which formed the basis of an estoppel with respect to subsequent claims concerning his back injury was made without jurisdiction and was therefore of no effect. He says that this is because s 54 of the Compensation Act provides that no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except a liability under the Compensation Act. Any claim for damages at common law is therefore excluded, and the District Court had no jurisdiction to hear the action and therefore to make the adverse findings.
The back injury in question was alleged to have occurred on 9 May 1989. The judgment of the District Court was delivered on 3 July 1992. At that time s 54 of the Compensation Act did not exclude an employer’s liability at common law for non-economic loss or solatium: s 54(1)(b). It was therefore possible, as the defendant did, to bring an action in the District Court against his employer for damages for non-economic loss arising out of his alleged back injury. Section 54(1)(b) of the Compensation Act was repealed by s 16 of the Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 which took effect on 3 December 1992, and which therefore did not affect the jurisdiction of the District Court to entertain a claim for damages for non-economic loss arising out of an alleged work related injury occurring in 1989. The argument based on the alleged invalidity of the findings of Judge Lee has never had any prospect of success.
In the proceedings before Deputy President McCouaig (decision No.25 above) the defendant had argued that the heads of agreement entered into by the parties amounted to or included a redemption of the plaintiff’s liability in respect of weekly payments pursuant to s 42 of the Compensation Act; that the plaintiff had failed to comply with the requirements of s 42 and that the purported redemption was therefore null and void. In response, the Deputy President found that the settlement did not effect and did not purport to effect a redemption of the plaintiff’s asserted liabilities in respect of weekly payments pursuant to the Act or otherwise: see para.[119]. The defendant subsequently and in these proceedings sought to use that finding to demonstrate that there was an unfulfilled liability on the part of the plaintiff to redeem the plaintiff’s liability to make weekly payments of compensation to the defendant.
The defendant’s argument is misconceived. It does not follow from the fact that there has been no redemption under s 42 that there remains a liability on the part of the plaintiff to redeem. The heads of agreement recorded the plaintiff’s denial of any liability to the defendant for weekly payments and agreed, for consideration expressed in the agreement, that the defendant’s claim for weekly payments should be dismissed, as it was. The defendant’s subsequent claims for redemption have been dismissed by the Tribunal and cannot now be resurrected. It would appear that the dismissal was entirely justified.
The defendant has claimed and continues to claim that the plaintiff’s liability to him under the Compensation Act cannot be reduced because of the ex gratia payment identified in the heads of agreement and which he received at the time. He seeks to argue that the plaintiff has not paid him the compensation to which he was entitled because the plaintiff included those amounts in the ex gratia payment. By virtue of s 114 of the Compensation Act that payment is to be ignored. That argument has been rejected in the Tribunal and cannot now be revived. In any event, it has no substance. The plaintiff’s liability for compensation at the time of the heads of agreement was more than satisfied by the payment of $10,000 identified in clause 2.3 of the heads of agreement. It would appear that the settlement and subsequent dismissal of the various claims have satisfied any liability for weekly payments and that there has never been any liability to redeem.
The defendant seized on the finding of a 2% permanent disability to the right middle finger, as found in decision No.17 above, as proof that he was automatically entitled to payments of income maintenance. That does not follow, and in any event, if there were a liability for some period of income maintenance in respect of that injury, it was discharged by the agreement.
The defendant argues that the heads of agreement are invalid because they were entered into without the consent of the WorkCover Corporation. The agreement was therefore a contract to avoid the Act and was void and of no effect by virtue of s 119 of the Compensation Act. This was an argument put to and rejected by Deputy President McCouaig in decision No.25 above, although at the time it was put in support of declaring only parts of the agreement null and void, as it appeared that the defendant wished to retain all the benefits that he had gained under the agreement but not to be bound by its restrictions. The Deputy President found that the heads of agreement did not constitute a contract which purported to exclude, modify or restrict the operation of the Compensation Act. That finding was upheld by the Full Bench of the Tribunal on appeal. That decision is final and, with respect, was plainly correct. There never has been any substance in this argument of the defendant.
The defendant has also argued that the plaintiff’s ability as an exempt employer to determine a claim for redemption of weekly payments is subject to the obligation contained in s 63(3aa) of the Act to notify the WorkCover Corporation of its intention to make an assessment and to the requirement not to proceed to do so without the Corporation’s consent. He alleges that no such consent was ever obtained. This argument fails for the same reason as earlier discussed in that there has been no redemption of weekly payments and nothing to redeem.
The defendant argues that certain documents known as EDI reports discovered by the plaintiff as a result of the application for non-party discovery in the District Court action constitute an acknowledgement of a continuing liability of the plaintiff to the defendant for certain heads of compensation payable under the Compensation Act. The documents concerned are, on the findings of the Tribunal, documents prepared by WorkCover Corporation to reflect returns required to be made by the plaintiff as an exempt employer to the Corporation in relation to claims before it. The defendant alleges that the documents indicate a failure to nominate any amount paid for lump sum payments, redemption of weekly income and redemption of medical expenses, while recording amounts paid in respect of other aspects of a particular claim. This indicates, so he argues, an ongoing liability for such items. These claims have been consistently rejected by the Tribunal and are not now open to review. Moreover, it appears that the documents concerned are not even documents prepared by the plaintiff but by the WorkCover Corporation from information supplied by the plaintiff. They do not constitute admissions of any liability to pay monies under the respective heads claimed. Nor do they constitute, as I understood the defendant to argue, the determination of a claim by the plaintiff which becomes reviewable by the Tribunal in accordance with the provisions of the Compensation Act. They are merely a record of what has in fact been paid by the plaintiff in respect of a particular claim and an estimate of past and future legal costs associated with the claim.
The defendant also seeks to argue that the same documents constitute an acknowledgement by the plaintiff that the defendant’s various claims of compensation have been “re-opened” by the plaintiff, thereby constituting some form of admission of ongoing liability to the defendant. Such claims could have no possible substance, given that the defendant’s many claims for compensation in respect of matters the subject of the heads of agreement and made after the heads of agreement had been signed would have required the plaintiff to re-open those claims merely in order to deal with the defendant’s renewed claims.
When the defendant applied to the Tribunal to set aside the consent orders made consequent upon the entry into the heads of agreement, the plaintiff argued before Deputy President McCouaig, as a preliminary issue, that the Tribunal had no jurisdiction to entertain the application. That argument was rejected and the plaintiff appealed. The appeal was dismissed, but during the course of their reasons the Full Bench of the Tribunal said (decision No.23 above at [15]):
“The Tribunal has jurisdiction to set aside an order because s 88H expressly gives that power. However, the Tribunal’s jurisdiction is limited to the setting aside of the consent order. It has no jurisdiction to make any orders or declarations whatsoever in relation to the Heads of Agreement.”
The defendant has seized upon that statement in these proceedings and in proceedings before the Tribunal to argue that the Tribunal had no jurisdiction to make orders or decisions based on or influenced by the heads of agreement. What the Full Bench of the Tribunal said was that it could not make any formal declaration, as was then being claimed by the defendant, to the effect that certain parts of the agreement were void and of no effect. What the Tribunal said did not mean that the Tribunal could ignore the agreement and determine the defendant’s claimed rights to compensation as if the agreement did not exist. The existence and validity of the agreement was crucial to the success or otherwise of the defendant’s various claims. The Tribunal found that the agreement was valid and binding and that it did not offend s 119 of the Compensation Act. It had to make findings as to the validity of the agreement. That was in order to determine the defendant’s application to set aside the consent orders. The Tribunal has never purported to make orders or declarations concerning the validity of any portion of the heads of agreement. The findings that it has made as to their validity have nevertheless been binding and have been relevant to the determination of the defendant’s many claims brought before the Tribunal.
Finally, the defendant alleges that pursuant to r 23 of the Workers Compensation Tribunal Rules 1996 the plaintiff failed to prepare and execute certain documentation relating to registration of the heads of agreement insofar as they related to the defendant’s entitlement to redemption of weekly payments. That argument was rejected by Deputy President McCouaig in decision No.25 above at [102], again based on the fact that there was no agreement for the payment of a lump sum by way of compensation for weekly payments nor any determination of any entitlement to such a lump sum. The rule therefore had no application. That matter has therefore been decided by the Tribunal, is not subject to review, and in any event appears to have been decided correctly.
It follows that none of the matters which the defendant claims have justified the proceedings instituted by him in the Tribunal have any foundation. They are all matters which have been decided by the Tribunal and are not subject to review in these proceedings. In any event, it appears that none of them have any substance. They do not provide any defence to these proceedings.
Orders
The plaintiff has succeeded in demonstrating that the defendant has persistently instituted vexatious proceedings. There is no indication that the defendant has ceased doing so. Indeed, the fact that he has continued to do so since these proceedings were instituted and the manner in which he conducted his case in this Court would suggest that he has every intention of continuing to institute such proceedings until someone recognizes the validity of what now must be described as hopeless claims. The plaintiff is entitled to the declaration it seeks in para.1 of the inter partes summons. It is also entitled to a declaration sought in para.3, although I will hear the parties further as to the precise terms of the order. As the evidence shows that there are existing proceedings instituted by the defendant which have also been instituted vexatiously, the plaintiff is entitled to an order under s 39(1)(b) staying those proceedings. I will hear the parties further as to the precise terms of any such order. I will also hear the parties as to the costs of the application.

No.	Citation	Decision Maker/ Forum	Date	Appeals/costs reference
1.	Kowalski and Mitsubishi Motors Australia Ltd (911249) Determination No. 515/91	Review Officer Lovering Workers Compensation Review Panel	06/09/1991
2.	Kowalski v Mitsubishi Motors Australia Ltd Action No. 2760/90	Judge Lee District Court	03/07/1992	8,10,15
3.	Kowalski and Mitsubishi Motors Australia Ltd (00296584/02/01) Determination No. 0145/94	Review Officer Fender Workers Compensation Review Panel	09/03/1994	4,5,7,20
4.	In the matter of an appeal by Kowalski against the determination of a Review Officer which also concerns Mitsubishi Motors Automotive Ltd No. 89W of 1994	Gilchrist DP Workers Compensation Appeal Tribunal	10/05/1995	5,7,20
5.	Mitsubishi Motors Australia Ltd v Kowalski Judgment No. S5443	Cox, Perry and Williams JJ Full Court of Supreme Court	06/02/1996	14,16
6.	Kowalski and Mitsubishi Motors Australia Ltd (00296584/02/02, 02/03 & 02/06) Determination No. 0123/96	Review Officer Harbord Workers Compensation Review Panel	12/03/1996	9,18
7.	In the matter of an appeal by Kowalski against the determination of a Review Officer which also concerns Mitsubishi Motors Automotive Ltd (No. 2) No. 89W of 1994	Gilchrist DP Workers Compensation Appeal Tribunal	06/08/1996	20
8.	Kowalski v Mitsubishi Motors Australia Ltd Judgment No. D3480	Judge Wilson District Court	07/08/1996	10,15
9.	Mitsubishi Motors Australia Ltd v Harbord and Kowalski Judgment No. S5895	Debelle J Supreme Court	21/11/1996	18
10.	Kowalski v Mitsubishi Motors Australia Ltd Judgment No.D3543	Judge Lee District Court	23/12/1996	15
11.	Kowalski v Mitsubishi Motors Australia Ltd (No. 3009 of 1996)	Thompson DP Workers Compensation Tribunal	19/02/1997	12
12.	Kowalski v Mitsubishi Motors Australia Ltd (Costs) (No. 3009 of 1996)	Thompson DP Workers Compensation Tribunal	19/02/1997
13.	Kowalski v Mitsubishi Motors Australia Ltd (No. 185 of 1992)	Judge McCusker Industrial Relations Court	11/04/1997
14.	Mitsubishi Motors Australia Ltd and Kowalski Action No. 1186 of 1995	Judge Kelly Supreme Court	11/04/1997	16
15.	Kowalski v Mitsubishi Motors Australia Ltd Action No. 2760 of 1990	Master Kelly District Court	23/04/1997
16.	Mitsubishi Motors Australia Ltd v Kowalski Action No. 1186 of 1995	Cox, Perry and Williams JJ Full Court of Supreme Court	01/05/1997
17.	Kowalski and Mitsubishi Motors Australia Ltd (00296584/03/01, 01/05) Determination No. 136/1997	Review Officer Harbord Workers Compensation Review Panel	14/05/1997	19
18.	Mitsubishi Motors Australia Ltd v Harbord and Kowalski Judge No. S6239	Doyle CJ, Matheson and Olsson JJ Full Court of Supreme Court	15/07/1997
19.	Kowalski and Mitsubishi Motors Australia Ltd (00296584/03/01, 01/05) Determination No. 178/1997	Review Officer Harbord Workers Compensation Review Panel	01/08/1997
20.	In the matter of an application by Kowalski No. 89W of 1994; In the matter of an appeal by Mitsubishi Motors Australia Ltd No. 47W of 1995	Gilchrist DP Workers Compensation Appeal Tribunal	04/08/1997
21.	Kowalski v Mitsubishi Motors Australia Ltd Action No. 548 of 1997	Magistrate Gun Industrial Relations Court	22/01/1998
Mediated Settlement	26/10/1998
22.	Kowalski v Mitsubishi Motors Australia [2000] SAWCT 2 (No. 4163 of 1998)	McCouaig DP Workers Compensation Tribunal	09/02/2000	23,25,27
23.	Kowalski v Mitsubishi Motors Australia [2000] SAWCT 123 (No. 4163 of 1998)	Jennings P, Parsons DP and Gilchrist DP Full Bench of Workers Compensation Tribunal	15/08/2000	25,27
24.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Rice District Court	03/07/2001	26,28,31,32, 33,35,36,39, 41
25.	Kowalski v Mitsubishi Motors Australia [2001] SAWCT 93 (No. 4163 of 1998)	McCouaig DP Workers Compensation Tribunal	14/08/2001	27
26.	Kowalski v Sim & Ors Action No. 957 of 1996	Judge Lowrie District Court	13/09/2001	28,31,32,33, 35,36,39,41
27.	Kowalski v Mitsubishi Motors Australia [2001] SAWCT 102 (No. 4163 of 1998)	McCouaig DP Workers Compensation Tribunal	13/09/2001
28.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Rice District Court	30/10/2001	31,32,33,35, 36,39,41
29.	Kowalski v Sim & Ors Action No. 957 of 1996	Judge Anderson District Court	21/03/2002
30.	Kowalski v Mitsubishi Motors Australia [2002] SAWCT 76 (Nos 4163/1998; 10W/2000; 2228/2001; 5879/2001; 8059/2000; 4174/1998; 4961/1998; 4529/1998; 132/2002)	Jennings P, Cawthorne DP and McCusker DP Full Bench of Workers Compensation Tribunal	19/02/2002
31.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Norman District Court	31/10/2002	32,33,35,36, 39,41
32.	Kowalski v Sim & Ors Action No. 957 of 1996	Judge Bright District Court	04/12/2002	33,35,36,39, 41
33.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Norman District Court	28/01/2003	35,36,39,41
34.	Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 4 (No. 5871/2002)	Gilchrist DP Workers Compensation Tribunal	03/02/2003	38
35.	Kowalski v Sim & Ors Action No. 957 of 1996	Judge Lee District Court	05/03/2003	36,39,41
36.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Norman District Court	12/03/2003	39,41
37.	Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 48 (No. 1539/2003)	McCouaig DP Workers Compensation Tribunal	07/05/2003
38.	Kowlaski v Mitsubishi Motors Australia [2003] SAWCT 100 (No. 5871/2002)	Cawthorne DP, McCusker DP and Parsons DP Full Bench of the Workers Compensation Tribunal	11/09/2003
39.	Kowalski v Sim & Ors Action No. 957 of 1996	Master Norman District Court	28/11/2003
40.	Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 24 (No. 3050/2003)	Cawthorne DP, Thompson DP and McCouaig DP Full Bench of the Workers Compensation Tribunal	11/03/2004
41.	Kowalski v Sim & Ors [2004] SADC 34 Action No. 957 of 1996	Judge Lee District Court	19/02/2004
42.	Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 32 (No. 5956/2003)	Jennings P Workers Compensation Tribunal	25/03/2004	45
43.	Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 35 (No. 9109/2003)	McCouaig DP Workers Compensation Tribunal	16/04/2004	44, 45
44.	Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 48 (No. 9109/2003)	McCouaig DP Workers Compensation Tribunal	04/05/2004	45
45.	Kowlaski v Mitsubishi Motors Australia [2004] SAWCT 71 (No.s 5956/2003 and 9109/2003)	Cawthorne DP, Gilchrist DP and Thompson DP Full Bench of the Workers Compensation Tribunal	25/06/2004