Mitsubishi Motors Australia Ltd v Kowalski - [2004] SASC 302

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
MITSUBISHI MOTORS AUSTRALIA LTD v KOWALSKI
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
24 September 2004
ADMINISTRATIVE LAW - PARTICULAR TRIBUNALS OR BODIES - WORKERS' COMPENSATION TRIBUNALS
Question of law reserved for consideration of Full Court - application by applicant for an order pursuant to Supreme Court Act 1934 s 39 on the ground that the respondent has persistently instituted vexatious proceedings - held that Workers Compensation Tribunal is a "court of the State" for the purposes of s 39.
Supreme Court Act 1939 (SA) s 39, s 65, s 68; Workers Rehabilitation and Compensation Act 1986 (SA) s 78, 78A, 79; Workers Rehabilitation and Compensation Act 1986 s 80, s 80A, s 81, s 84A, s 85, s 85A, s 85B, s 86, s 88, s 88A, s 88E, s 88I, s 87; Workers Rehabilitation and Compensation Act 1986 s 90, s 91A, s 92, s 92D, s 93, s 94, s 94A, s 94C; District Court Act 1991 (SA) s 32; Workers Compensation Act 1987 (NSW); Supreme Court Act 1986 (Vic), referred to.
Australian Postal Commission v Dao & Anor (No 2) (1986) 69 ALR 125; New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173; R v Trade Practices Tribunal & Ors; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Trevor Boiler Engineering Co Pty Ltd v Morley [1985] VR 716; Shell Company of Australia Ltd v The Federal Commissioner of Taxation (1930) 44 CLR 530, applied.
Jones v Skyring (1992) 109 ALR 303, discussed.
Commonwealth Trading Bank v Inglis (1974) CLR 311; Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1; Braeside Bearings Pty Ltd v HG Brignell & Associates [1996] 1 VR 17; Cheney v Spooner (1928) 41 CLR 532, considered.

MITSUBISHI MOTORS AUSTRALIA LTD v KOWALSKI
[2004] SASC 302
Full Court: Duggan, Besanko and Anderson JJ

DUGGAN J. Since August 1989 Mr Kowalski, a former employee of Mitsubishi Motors Australia Limited (“Mitsubishi”) has instituted a series of actions and applications against Mitsubishi concerning various alleged work related injuries and a claim for wrongful dismissal.
One of the more recent applications was a Notice of Dispute filed by Mr Kowalski in the Workers Compensation Tribunal (“the Tribunal”) on 23 August 2002. It was contended in the Notice of Dispute that Mr Kowalski has an undetermined claim in relation to weekly payments of income maintenance and compensation by way of a lump sum in respect of a back injury allegedly sustained by him in the course of his employment with Mitsubishi in May 1989. Mitsubishi sought an order from the Tribunal that the Notice of Dispute be struck out as an abuse of process. An order was also sought preventing Mr Kowalski from filing any further applications against Mitsubishi relating to this or any other matter without the leave of the President of the Tribunal. Mitsubishi’s application came before a Deputy President of the Tribunal who struck out the Notice of Dispute filed on 23 August 2002, but held that the Tribunal had no power to make the second order which was sought in relation to future matters.
Subsequently, the Full Bench of the Tribunal dismissed an appeal by Mr Kowalski against the striking out of the Notice of Dispute and an appeal by Mitsubishi against the refusal to make the second order relating to future matters.
Mitsubishi appealed to this court against the decision of the Full Bench of the Tribunal in respect of the last mentioned matter. Prior to the hearing of the appeal Mitsubishi also filed an inter partes summons in this court seeking the following relief against Mr Kowalski:
“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.”
In so far as it is relevant, s 39 of the Supreme Court Act provides as follows:
“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.
. . .
(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.”
At a directions hearing, 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 also ordered that the question be referred to the Full Court to be heard in conjunction with the appeal by Mitsubishi against the decision of the Full Bench of the Tribunal.
When the matter was called on before this court, Mitsubishi abandoned the appeal and the court proceeded to hear argument on the question of law referred by the master.
The referred question asks directly whether the Tribunal is a “court” for the purposes of the section, but the issue for consideration emanates from the use of the term “proceedings” in s 39(1). The Supreme Court is required to consider “proceedings” which have been instituted in determining whether to make an order under the section. Then, if an order is made, it may extend to “further proceedings”. This leads to the enquiry as to whether matters commenced in the Tribunal are “proceedings” for the purposes of the section. They are to be considered as such if they are civil proceedings instituted in a court of the State (s 39(6)).
The question as to whether a Tribunal or other body is a “court” for the purpose of particular legislation has to be determined in the context and with regard to the purpose of that legislation: Australian Postal Commission v Dao and Anor(No. 2) (1986) 69 ALR 125 per McHugh JA at 143; New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 185.
This history of legislation empowering the courts to make orders to prevent vexatious actions is summarised in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311. The purpose of such legislation is to prevent abuses of the process of the courts and hardship to persons against whom groundless actions are brought.
Against this background and context, it is necessary to have regard to the nature, procedure and powers of the statutory Tribunal in order to determine whether it is appropriate to regard it as a “court” for the purposes of the section.
A proper construction cannot be arrived at simply by reference to a checklist of functions (Muirhead at 185), but the authorities identify certain characteristics and elements which are of assistance in determining whether the body under consideration is properly to be regarded as a court in the relevant legal context.
A useful starting point is to enquire whether there has been an investing of judicial power. The criteria relevant to such an assessment were discussed in Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 where the issue was whether the Federal Parliament had purported invalidly to invest judicial power in the Human Rights and Equal Opportunity Commission. In their joint judgment Deane, Dawson, Gaudron and McHugh JJ said at [17]:
“It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 in which he spoke of the concept of judicial power in terms of the binding and authoritative decision of controversies between subjects or between subjects and the Crown made by a tribunal which is called upon to take action. However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion. Thus Kitto J in R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 said that judicial power consists of the ‘giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct’. But again, as was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149; 72 ALR 173, the exercise of non-judicial functions, for example, arbitral powers, may also involve the determination of existing rights and obligations if only as the basis for prescribing future rights and obligations.
However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR at 451 Barton J said:
It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.
And in FCT v Munro (1926) 38 CLE 153 at 176 Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution. It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 at 198-9. He pointed to the fact that in Huddart, Parker and Co Pty Ltd v Moorehead Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power but also spoke to such a decision being given by a tribunal ‘called upon to take action’. Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, ‘all the attributes of judicial power are plainly present’ ibid at 199.”
Under the legislation the Federal Court was not required to consider the merits of a decision of the Commission before enforcing it. The court reached the conclusion that the legislation purported to invest the Commission with judicial power. The fact that determinations of the Commission were enforceable was essential in reaching this conclusion. However, the consideration that the Commission’s determinations were not enforceable by the Commission, but rather by the Federal Court upon registration in that court, was not necessarily inconsistent with the exercise of judicial power.
In the present case, the Tribunal is invested with power to determine the rights of litigants before it in relation to various aspects of compensation for injuries which are compensable under the Workers Rehabilitation and Compensation Act 1986 (“the Act”). In performing this function it is required to form an opinion as to the relevant facts and apply to those facts pre-existing legal concepts (cf. Muirhead at 188; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 per Kitto J at 374). The Tribunal is not empowered to enforce its own decisions, but s 87A of the Act provides that, in the event of a certified copy of a judgment or order of the Tribunal being filed in the District Court, it may be enforced as a judgment or order of that court.
In my view these considerations support the contention that the Tribunal is invested with judicial power. However, it is necessary to go further and examine the structure and procedures of the Tribunal.
Section 79 of the Act provides that the Tribunal has the jurisdiction conferred on it by statute. It may be constituted of a Full Bench, a single presidential member or a single conciliation and arbitration officer (s 78). A Full Bench consists of three presidential members (s 78A). The President is the principal officer of the Tribunal (s 80).
Section 80 states that the Senior Judge of the Industrial Relations Court of South Australia is to be the President of the Tribunal. A judge (other than the senior judge) of the Industrial Relations Court is a Deputy President of the Tribunal (s 80A) and the Governor may, on the nomination of the Minister, appoint other Deputy Presidents. Such persons must be legal practitioners of at least seven years standing.
A Deputy President ceases to hold office upon reaching the age of 65 years and may be removed from office by the Governor for misconduct, neglect of duty, incompetence or incapacity to carry out official duties satisfactorily (s 80A).
The Governor may appoint conciliation and arbitration officers to carry out the Tribunal’s work of conciliation and arbitration. Appointees must be persons of standing in the community with appropriate experience to work effectively in the conciliation and arbitration of disputes under the Act (s 81). Appointments are for an initial term of five years with eligibility for reappointment. The Governor may remove a conciliation and arbitration officer from office if the officer is convicted of an indictable offence or in the event of misconduct, incompetence or mental or physical disability rendering the officer incapable of carrying out official duties.
The principal object of the Act is to establish a workers’ rehabilitation and compensation scheme. In the event of a dispute in relation to matters such as a decision on a claim for compensation or the nature of rehabilitation services to be provided to a worker, a Notice of Dispute may be filed with the Registrar (s 90). The disputed decision is then referred to the relevant compensating authority for reconsideration. If a party to the dispute expresses dissatisfaction with the result of the reconsideration, the Registrar is required to refer the dispute for conciliation (s 91A). A presidential member or conciliation officer is then assigned to preside over conciliation proceedings (s 92).
If the conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator must refer the dispute to the Tribunal for either arbitration or judicial determination (s 92D). In the event of an arbitration being directed, the arbitration is to be conducted by a conciliation and arbitration officer (s 93). If a party to the dispute is dissatisfied with the result of an arbitration and disputes the arbitrated determination, the Tribunal is required to make a judicial determination of the disputed claim (s 94).
A judicial determination of a disputed claim can only be made by the Tribunal constituted by a single presidential member or, if the President so directs, by the Full Bench of the Tribunal (s 94A). The Tribunal must rehear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings (s 94C).
For the sake of completeness I mention some other elements of the operation of the Tribunal. There is an appeal on a question of law from a decision of the Tribunal constituted by a single presidential member to the Full Bench of the Tribunal (s 86). The Full Bench may state a case on a question of law for the opinion of the Full Court of the Supreme Court. No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed, or called in question except as provided for in the Act or in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction (s 88I).
The Tribunal must hear proceedings (other than interlocutory or conciliation proceedings) in a place open to the public unless the Tribunal orders otherwise in the interests of a party (s 85A). A person is entitled to appear personally before the Tribunal or by a representative (s 85B). There is power to award costs. Presidential members of the Tribunal and conciliation and arbitration officers have the same privileges and immunities from civil liability as a judge of the Supreme Court (s 88). There is power to punish contempts in the face of the Tribunal or for failure to comply with a summons, direction, order or other process of the Tribunal other than for the payment of money (s 88A). The Tribunal is empowered to issue a summons to require the attendance of witnesses or the production of evidentiary material (s 84A). The President has power to make rules of the Tribunal (s 88E).
The Tribunal is not bound by the rules of evidence, but may inform itself in any way it considers appropriate (s 84). Section 85 provides that the Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Similar provisions in the Workers’ Compensation Act 1987 (NSW) applicable to Commissioners appointed under that Act did not stand in the way of a finding by the majority in Muirhead that the Commissioners were a “court” for the purpose of the law of contempt. Commenting on these provisions Kirby P said at 198:
“The provisions of the Act in relation to the informal procedure of the Commissioners are not uncommon in compensation legislation. There are similar injunctions to decide matters ‘upon the real merits and justice of the case’ and not to ‘follow strict legal precedent’ in the Compensation Court Act 1984, s 17(1) and s 17(2), in respect of that Court.”
It is well known that decisions by the Tribunal are made in accordance with precedents and principles developed by the Tribunal and by the Supreme Court in its interpretation of the Act. As Starke J pointed out in Trevor Boiler Engineering Co Pty Ltd v Morley [1983] VR 716 at 720:
“However, it is notorious that the law in respect to workers compensation is hedged around with legal technicalities. In Noble v Southern Railway Co [1940] AC 583 at p 600, Lord Wright said: ‘I have often reflected with sadness that the Act was to be administered with as little technicality as possible. Yet thousands of reported cases have accumulated round it and fresh ones are likely to go on accumulating …’.”
I have acknowledged that the question as to whether the Tribunal is to be regarded as a “court” for the purposes of s 39 is not to be decided by reference to a check list of attributes. Furthermore, as the Privy Council pointed out in The Shell Company of Australia Ltd v The Federal Commissioner of Taxation (1930) 44 CLR 530 at 543 when holding that a Taxation Board of Review was not a court:
“The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.”

Their Lordships continued at 544:
“In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision; (2) nor because it hears witnesses on oath; (3) nor because two or more contending parties appear before it between whom it has to decide; (4) nor because it gives decisions which affect the rights of subjects; (5) nor because there is an appeal to a Court; (6) nor because it is a body to which a matter is referred by another body. (See R v Electricity Commissioners (1924) 1 KB 171).
However, after considering all the relevant characteristics of the Tribunal, I have reached the conclusion that it is a “court” for the purposes of the exercise of the power entrusted to the Supreme Court pursuant to s 39 of the Supreme Court Act.
A body does not have to be named as a “court” in the legislation which creates it for it to be regarded as a court in a particular context. I have expressed the view that the Tribunal is invested with judicial power. It has power to make binding and authoritative decisions on disputes between parties according to pre-existing standards. Its decisions are enforceable, albeit through the agency of the District Court.
While conciliation and arbitration officers are involved in the work of the Tribunal, any party can insist that the matter be determined finally by a presidential member or members of the Tribunal. Although practices differ from State to State, mediators, conciliators and arbitrators are playing an increasing role in the work of the courts in a number of jurisdictions (cf. Supreme Court Act 1935 ss 65 and 68; District Court Act 1991 s 32). I do not regard the conciliation and arbitration powers of the Tribunal as a feature which tells against the Tribunal being regarded as a court. Furthermore, the presence of lay members on the Workers Compensation Board in Victoria did not deter Starke J from deciding that the Board was a “court” in Trevor Boiler Engineering Co Pty Ltd v Morley (supra) at 716.
The procedures of the Tribunal have many attributes in common with courts generally. I have referred to aspects such as the power to punish contempts and award costs, the ability to summons witnesses and direct the production of documents, the power to make rules and the procedures for appeals.
The attributes which the Tribunal has in common with courts generally are also relevant in considering the applicability of orders of the type provided for in s 39. Abuse of process and detriment to other parties are features of vexatious proceedings in the Tribunal just as they are in civil courts of general jurisdiction. Accordingly, the applicability of the section to the Tribunal sits comfortably with the purpose of the legislation.
For these reasons, it is my view that the Tribunal should be regarded as a “court” for the purposes of s 39.
I have referred to the use of the term “proceedings” in s 39(1) and the meaning given to that term in s 39(6). 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.
The term “civil” is used throughout the Supreme Court Act to describe that area of the court’s jurisdiction which is not part of the criminal jurisdiction. In my view, there is no doubt that a claim for compensation for a work injury is properly characterised as a “civil proceeding” and, in the light of the reasons which I have given, the filing of a Notice of Dispute in the Tribunal would amount to the institution of civil proceedings in a court of the State. As to the meaning of the term “instituted” in s 39(1) I invite attention to the discussion by Toohey J in Jones v Skyring (1992) 109 ALR 303 at 310.
I would answer the question of law referred to this court as follows:
“The Workers Compensation Tribunal is a ‘court of the State’ for the purposes of s 39 of the Supreme Court Act 1935.”
Besanko J. I agree with the answer proposed by Duggan J and with his reasons.
Anderson J. I agree with the answer proposed by Duggan J and with his reasons.