Purins v Alpine Constructions Pty Ltd

[2008] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

PURINS v ALPINE CONSTRUCTIONS PTY LTD

[2008] SASC 11

Judgment of The Honourable Justice Debelle

18 January 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT

Appeal against order of Full Industrial Court - application to dismiss appeal summarily - appellant seeking to re-litigate claim for workers' compensation - a number of earlier leave applications discussed - clear beyond argument then appeal will fail - appeal dismissed.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE

Application to declare appellant a vexatious litigant - repeated applications to re-open claim for workers' compensation - applications had all failed - appellant declared vexatious litigant.

Supreme Court Rules Rule 290(1)(h); Supreme Court Act 1935 s 39, referred to.
Mayne Market Pty Ltd v Temple [1999] SASC 271, applied.

PURINS v ALPINE CONSTRUCTIONS PTY LTD
[2008] SASC 11

Civil

1. DEBELLE J.        This is an application for an order summarily dismissing an appeal against an order made by the Full Industrial Relations Court on 9 December 2007.  It is made by the respondent to this appeal.  In the alternative, the respondent seeks an order for security for costs.

2. Rule 290(1)(h) invests this Court with power summarily to dismiss an appeal if it is obvious that it cannot succeed. That power may be exercised by a single judge of the court. As a general rule, a judge would not exercise the power unless the appeal is so defective in form and substance that it must be struck out either as failing to invoke the jurisdiction of the Full Court or clearly is an abuse of process: Mayne Market Pty Ltd v Temple [1999] SASC 271.  In my view, the Court will also exercise that power where it is clear beyond argument that the appeal must fail.

3. In this case, the respondent has very strong grounds to support its application, and it is appropriate to make an order dismissing the appeal. I set out those grounds. The appellant is a former employee of the respondent.  He injured himself in the course of his employment on 20 September 1978. On 27 August 1981, Olsson J, then a member of the Industrial Court, made orders by consent on applications by the appellant dated 28 July 1980 and 5 March 1981, whereby the appellant sought weekly payments of workers compensation benefits on account of the injury which he had suffered on 20 September 1978.  The transcript of those proceedings records that the orders were made in full and complete settlement of all claims for compensation by the appellant. The judgment of Olsson J is recorded in an order drawn up in the Workers Compensation Court in 1981. The appellant was paid the amount due to him pursuant to that order.

4. The respondent has since made a number of applications to recover workers compensation in respect of the same event and the same injury. The first was made on 18 September 1984 and was dismissed by Acting Judge Di Fazio. The appellant appealed to the Full Court of the Industrial Court, which dismissed the appeal. Since then, the appellant has made at least eight further like applications and all applications have been dismissed. The appellant has appealed to the Full Court of the Industrial Court, or its equivalent, against seven of the orders dismissing the applications. Each of those appeals has been dismissed.  On one occasion, the appellant instituted a further appeal to this Court.  That appeal too was dismissed. The details of these proceedings are set out in part of the affidavit of Mr Sharp, sworn on 20 December 2007, and it is unnecessary to recite them again. I incorporate that part of Mr Sharp’s affidavit in these reasons.

5. This appeal involves identical issues.  It is another attempt to re-open an application to recover workers compensation in respect of a matter which has already been determined and cannot be determined again. The proceedings are entirely misconceived. It is relevant to repeat that the Full Court of this Court has already reached that conclusion in the judgment published on 6 March 1996. The Full Court would reach the same decision on this occasion.

6. For all of these reasons, I will make orders dismissing the appeal.

7. An award for costs will only be made against a worker if there are special circumstances justifying that award. The recitation of the facts of this matter indicate that special circumstances do exist. Mr Purins has repeatedly brought applications in respect of the same injury for which he has already been compensated. It seems that he is unwilling to accept orders made at three levels, that is to say, orders made by judges of the Industrial Court, by the Full Court of the Industrial Court, or by the Full Court of this Court. In one sense his persistence is remarkable but the price of that persistence is, I regret, an order for costs against him.

8. The respondent also applies for an order that Mr Purins be prohibited from instituting further proceedings in the workers compensation jurisdiction of the Industrial Relations Court in relation to the injury suffered by him on 20 September 1978. The application is made pursuant to s39 of the Supreme Court Act 1935. The respondent has standing to make the application because it is plainly an interested person. This court has power to make an order pursuant to s39 in respect of proceedings in the Workers Compensation Tribunal. The recital of the facts demonstrates that it is appropriate to make an order in this Court.

9. The appellant has persistently instituted proceedings in relation to the same injury.  He has been consistently denied relief. The fact that he has persisted in making the proceedings means that those applications must be classed as vexatious proceedings. I accept that Mr Purins does not himself regard the application as vexatious.  However, that is the unfortunate consequence of his repeated attempts to litigate issues which have been repeatedly determined against him.

10. There will therefore be an order prohibiting the appellant from instituting further proceedings without permission of this Court. The orders will be as follows:

    1.That the appeal herein be dismissed.

    2.That the appellant pay the respondent’s costs of an incidental to the appeal and to this application.

    3.That the appellant be prohibited from issuing further proceedings in the Workers Compensation Tribunal without the permission of this Court.