FEDERAL COURT OF AUSTRALIA
Soden v Kowalski [2011] FCA 318
Citation: Soden v Kowalski [2011] FCA 318 Parties: WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA) v KAZIMIR KOWALSKI and MITSUBISHI MOTORS AUSTRALIA LIMITED, MMAL STAFF SUPERANNUATION FUND PTY LTD and AMP SUPERANNUATION LTD File numbers: SAD 75 of 2010
SAD 96 of 2010Judge: STONE J Date of judgment: 7 April 2011 Catchwords: PRACTICE AND PROCEDURE – application pursuant to ss 21 and 23 Federal Court of Australia Act 1976 (Cth) and O 21 r1 and O 35 r 1 Federal Court Rules to have respondent declared a vexatious litigant – order sought preventing respondent from bringing further proceedings against the applicants and generally in this Court without leave – discussion of principles – meaning of ‘proceeding’ – discussion of ‘vexatious proceeding’– vexatiousness a quality of the proceeding not the respondent’s intention – test is whether a proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless – question of whether respondent has instituted proceedings ‘habitually, persistently and without reasonable grounds’ not to be confused with whether proceeding is vexatious – requirements of O 21 rr 1 and 2 satisfied – orders granted
Legislation: Federal Court of Australia Act 1976 (Cth) ss 4, 21 and 23, s 59(2)(l)
Supreme Court Act 1935 (SA) s 39(5)Federal Court Rules O 21 rr 1, 2, 4 and 5, O 35 r 1
Cases cited: Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269
Attorney-General v Collier [2001] NZAR 137
Attorney-General v Wentworth (1988) 14 NSWLR 481
Bahonko v Nurses Board of Victoria [2008] FCAFC 29
Brogden v Attorney-General [2001] NZAR 809
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311
Gallo v The Honourable the Attorney-General VSC 4 September 1984 (unreported) Starke J
GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710
Horvarth v Commonwealth of Australia [1999] FCA 504
Hunters Hill MunicipalCouncil v Pedler [1976] 1 NSWLR 478
IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231
Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 Granich & Associates v Yap [2004] FCA 1567
Jones v Skyring (1992) 109 ALR 303 at 312Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007 [FCA] 1069
Ramsey v Skyring (1999) 164 ALR 378
Re Vernazza [1960] 1 QB 197
Watson v Watson (1968) 70 SR(NSW) 203Date of hearing: 1 and 2 December 2010 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 211 SAD 75 of 2010 Counsel for the Applicant: T Duggan Solicitor for the Applicant: EMA Legal Appearance for Respondent: The respondent appeared in person SAD 96 of 2010 Counsel for the Applicants: VM Heath Solicitor for the Applicants: Thomsons Lawyers Appearance for Respondent: The respondent appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 75 of 2010
BETWEEN: WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF…
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- AGLC
- Soden v Kowalski [2011] FCA 318
- Case
- [2011] FCA 318
- Decision Date
CaseChat Overview and Summary
The court found that the requirements of the relevant rules were satisfied. The evidence showed that the respondent had instituted numerous proceedings against the applicants, many of which were found to be vexatious in other courts and tribunals. The court held that vexatiousness is a quality of the proceeding, not the respondent’s intention. The test for determining whether a proceeding is vexatious is whether it is so obviously untenable or manifestly groundless as to be utterly hopeless. The court found that the respondent had instituted proceedings habitually, persistently, and without reasonable grounds, satisfying the requirements of the relevant rules.
Accordingly, the court granted the orders sought by the applicants, prohibiting the respondent from instituting or continuing any proceedings in the Federal Court or against the applicants without leave. The respondent was also ordered to pay the applicants' costs.
Orders
Orders of the court
2. Kazimir Kowalski, the respondent in this proceeding, not institute any further proceeding in this Court without the leave of the Court.
3. Any proceeding instituted prior to this order by Kazimir Kowalski, the respondent in this proceeding, not be continued without the leave of the Court.
4. The respondent’s notice of objection to competency be dismissed.
5. The respondent pay the applicant’s costs of this proceeding.
3. Kazimir Kowalski, the respondent in this proceeding, not institute any further proceeding in this Court against any or all of the applicants, Mitsubishi Motors Australia Ltd, MMAL Staff Superannuation Fund Pty Ltd and AMP Superannuation Ltd without the leave of the Court.
4. Any proceeding instituted prior to this order by Kazimir Kowalski, the respondent in this proceeding, against any or all of the applicants, Mitsubishi Motors Australia Ltd, MMAL Staff Superannuation Fund Pty Ltd and AMP Superannuation Ltd not be continued by him without the leave of the Court.
5. The respondent’s notice of objection to competency be dismissed.
6. The respondent pay the applicants’ costs of this proceeding.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Despite the Heads of Agreement and Mitsubishi’s payment of $200,000 pursuant to the Agreement the respondent continued to institute proceedings against Mitsubishi alleging, inter alia, that the Agreement should be set aside on the ground that Mitsubishi did not negotiate it in good faith and that he signed it under duress; see, for instance, Kowalski v Mitsubishi Motors Ltd [2001] AIRC 1212 at [11] – [16]. Mr Kowalski apparently sees no inconsistency between this stance and his view that he is not obliged to return the money paid by Mitsubishi.Vexatious litigant declaration in Supreme Court of South Australia - 19 April 2005 The numerous proceedings brought by the respondent led Mitsubishi to seek a declaration in the Supreme Court of South Australia that the respondent was a vexatious litigant. On 19 April 2005 Bleby J made a declaration in those terms and ordered that Mr Kowalski be prohibited from instituting further proceedings against Mitsubishi or a related entity in the State Courts of South Australia without the leave of the Supreme Court; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. Most of the proceedings said to be vexatious in the proceeding before Bleby J were proceedings instituted by the plaintiff in the Workers Compensation Tribunal, which is constituted under the Workers Rehabilitation and Compensation Act 1986 (SA). A preliminary question was whether the Tribunal was a court for the purpose of Mitsubishi’s application. The question was answered in the affirmative in Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302. The application before Bleby J was made under s 39 of the Supreme Court Act 1935 (SA) which provides for declaration such as Mitsubishi sought in the case of the institution of vexatious proceedings. Section 39(5) of that Act provides that 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. His Honour considered 45 decisions that had been referred to by Mitsubishi in support of its application to have Mr Kowalski declared a vexatious litigant. Of those proceedings, the plaintiff had submitted that 29 were vexatious. In relation to those 29, his Honour found that 24 (one of which involved ten separate proceedings, all disposed of in one decision) were vexatious, four were not vexatious and one was not a proceeding but an application made in the course of a proceeding. With respect to that application, however, his Honour observed, at [232], that it nevertheless illustrated, “the continued attempts by the defendant to thwart the legitimate process of the Court”. His Honour also referred to multiple proceedings that had been brought between 1998 and 2005 in courts and tribunals to which s 39 did not apply. They included proceedings commenced in the Australian Industrial Relations Commission, the Federal Court and the Legal Practitioners’ Disciplinary Tribunal. His Honour commented that the plaintiff had brought those 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”. In response to Mr Kowalski’s objection to the irrelevance of these matters, his Honour further observed, at [265]:It is important to consider the respective positions of the parties in the broad context of all of the litigation that has occurred. … 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 on the decision 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.