Kowalski v Mitsubishi Motors Australia Limited

Consideration 31 The applicant in his submissions of 27 August 2010 has addressed the question whether the matters he now raises have been previously heard and determined. He submits that his present causes of action, namely: · "fraud on the applicant and various Courts", particularly in relation to the matters referred to in [18] and in [28] at (3) and (5) above; · contravention of s 51AA(1) of the TP Act, and · "in equity" have not previously been determined. The submission then asserts that the applicant is "not dealing with any subject matter" that has been formally or finally determined by a Court" after a full trial on the merits. 32 It is not correct to say that none of the applicant's claims have been determined after a full trial on the merits. The decision of the WCT given on 14 August 2001 referred to in [18] and [19] above included detailed findings by a Deputy President of the WCT after a hearing that: 1. the respondent did not place unconscionable pressure on the applicant leading to the Heads of Agreement, but acted in good faith in its conduct leading to the Heads of Agreement, notwithstanding the applicant's assertions that certain material information was withheld from him; 2. the Heads of Agreement is not void or unenforceable by reason of s 114 of the WRC Act, and that the Heads of Agreement did not purport to modify or exclude any compensation entitlements of the applicant under the WRC Act but (as recognised by the consent orders made by Review Officers under the WRC Act on 3 and 5 November 1998) reflected the respondent's assertion that he hade no ongoing entitlements under that Act; 3. consequently, the payment made under the Heads of Agreement was not in redemption of any liability to make payments under the WRC Act, so that rr 3(4) or 33 of the Rules of the WCT did not apply and the Heads of Agreement was not required to be registered under the WCT Act to be enforceable. 33 That decision was upheld by the Full Bench of the WCAT, as noted at [19] above. 34 The nature and effect of that decision of the WCT was explained by Bleby J in the SCSA proceeding in his Honour's judgment given on 19 April 2005, in particular at [279]-[293], in which he determined that the applicant should be declared a vexatious litigant: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. I respectfully agree with his Honour's findings as to the nature and effect of that WCT decision. 35 In addition, it is important to note that with one exception the applicant's claims have, in my view, all previously been made in the proceedings referred to, albeit that the label the applicant now attaches to his asserted causes of action may be a little different from a label he has previously used. Variously expressed, he has in fact unsuccessfully asserted to the FCA and the WCT, and has raised as an issue in the SASC, that the Heads of Agreement cannot or should not preclude him from pursuing claims against the respondent under the WRC Act in respect of the several asserted compensable injuries referred to above. He has variously claimed that the Heads of Agreement were procured by the respondent by unconscionable or misleading conduct, including by alleged failures to disclose information to him. He has variously claimed that the Heads of Agreement are unenforceable or invalid, at least to the extent that they preclude him from pursuing compensation claims under the WRC Act, because of provisions of the WRC Act or the Rules of the WCT or because the respondent has not complied with s 23 of the HOSC Act. Those claims have been expressed in terms which, in my view, did involve the causes of action now identified by the applicant. 36 It is at least arguable that the applicant has not formally raised previously the alleged fraud on the FCA or (as he puts it in his submissions) "on various Courts". I assume such a claim might be legally maintainable by the applicant, and might if made out entitle him to have set aside earlier decisions of the FCA: see O 35 r 7(2)(b) of the Federal Court Rules. However, there is no pleaded basis on which such a claim could possibly succeed. One asserted foundation for it is the conduct of the respondent in the course of or surrounding the mediation leading to the Heads of Agreement. That is not conduct concerning the conduct of any proceedings in the FCA. The same conduct has been asserted unsuccessfully by the applicant against the respondent; there have been findings adverse to the assertion as noted above. Another asserted foundation for it is the claimed failure of the respondent to comply with s 23 of the HOSC when - he asserts - the respondent was obliged to do so; there have been findings adverse to that assertion as noted above. Another asserted foundation for it is the claim that the respondent has "fraudulently" informed the FCA that the WCT had jurisdiction to make orders and declarations in relation to the Heads of Agreement when (he asserts) it did not have such jurisdiction. As to that, the applicant in his submissions (and in his amended statement of claim) misstates the position. In the proceeding upon which the applicant relies to establish his assertion he has quoted - no doubt accidentally - a little selectively from the decision of the WCAT referred to above. That proceeding was an appeal from the WCT decision referred to at [19] above: Mitsubishi Motors Australia Ltd v Kowalski [2000] SAWCT 123 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. 37 As there indicated, the WCT and then the WCAT decided over Mitsubishi's objection that the WCT had jurisdiction to decide the status of the Heads of Agreement to the extent necessary to decide whether certain provisions of the WRC Act applied having regard to the terms of the Heads of Agreement and to decide whether to set aside the consent orders referred to in [17] above. 38 The applicant's amended statement of claim quotes only part of that passage. It is no doubt correct that the WCT did not have jurisdiction at large in relation to the Heads of Agreement. But it could, and did, consider the Heads of Agreement to determine their effect in relation to the issues before it. The validity and effect of the Heads of Agreement was relevant to those issues because the applicant claimed to set aside the consent orders made by Review Officers on 3 and 5 November 1998 so that he could pursue further compensation claims against the respondent. The WCAT accepted that the Heads of Agreement was valid and binding, notwithstanding the applicant's contentions that it was invalid by reason of its effect in the face of s 119 of the WRC Act, or its non-registration under the WRC Act, or despite rr 3(4) or 33 of the Rules of the WCT not having been complied with. There is nothing in the respondent's conduct as pleaded in the amended statement of claim which takes the matter beyond that position. 39 The "fraud" is particularised in paras 54-55 of the amended statement of claim, extending over some five pages. There is no specific allegation of a communication to the FCA, other than the general one at para 55.1.1 as described in [27] and [28] at (4) above. There is additionally at para 75.1 the allegation that the respondent informed the FCA that it did not have any liability to redeem any obligations to pay weekly compensation to the respondent. The position is, as the WCAT said, that the WCT had jurisdiction to decide how the Heads of Agreement operated and as to its legal effectiveness in the context of the applicant's attempt to set aside the consent orders of 3 and 5 November 1998 and to pursue compensation claims against the respondent. It also had jurisdiction, if those consent orders were set aside, to hear and determine the compensation claims. The applicant did not there, nor has he elsewhere, sought an order that the Heads of Agreement should be set aside in their entirety, so that he should repay the $200,000 payment he received and the respondent should not treat them as giving rise to binding obligations. The respondent has consistently said that it did not, by the Heads of Agreement redeem any liability to pay compensation to the applicant because it disputed any liability to pay weekly compensation by that time. Consequently, it has consistently said that it had no obligation under s 23 of the HOSC Act. There is nothing to indicate that it does not hold those views. It has relied upon the WCT and WCAT decisions referred to at [18] and [19] and provided references to them; it cannot therefore be shown to have deliberately mislead the FCA as to their conduct or effect. There is nothing asserted to the effect that the FCA has misapprehended the relevant facts or has misapprehended the relevant law solely because of the conduct of the respondent: cf Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300. Indeed, the assertion is at such a level of generality as to be unsustainable as a proper pleading. In the absence of any material identified by the applicant, which would have to be the specification of a particular judgment of the FCA which showed both the specific conduct asserted against the respondent, its acceptance by the FCA, the fact that that conduct was fraudulently engaged in, and that its acceptance was a significant factor in the result of that case, and of course that the conduct was in fact wrong, there is no reason to allow the applicant to replead. His detailed written submissions do not provide any such material. 40 The applicant in Part A of his submissions of 20 September 2010 has indicated the material he may present in evidence if this application is to proceed to trial. Some of that material is clearly inadmissible; for instance, a book review of a book entitled "Serial Liars". I have considered that material, which was enclosed with the submission. None of it has the necessary content to advance the applicant's case in this respect. Indeed, none of it could advance the applicant's contentions more generally in the circumstances of this matter. 41 As to the other claims, the FCA does not have jurisdiction to hear and determine claims under the WRC Act. That jurisdiction rests, in the first instance, with Review Officers and the WCT. The decision of the WCT, upheld by the WCAT, was that the Heads of Agreement operated effectively to preclude the applicant from having the consent orders of 3 and 5 November 1998 set aside and from further pursuing those claims. Moreover, the applicant is presently bound by the terms of the Heads of Agreement and his attempts to avoid its terms (albeit whilst retaining its benefits to him) have to date been unsuccessful. Those attempts have included the matters now asserted in the amended statement of claim: the alleged fraud or misrepresentations by the respondent in, and in relation to the mediation; the alleged failures to comply with the WRC Act or the Rules of the WCT or to recognise and give effect to the applicant's asserted rights under the WRC Act. 42 Finally, I note that the applicant has also referred to a letter of 28 July 2010 to the respondent, apparently sent under s 42A of the WRC Act, asking it to review the ex gratia payment to determine whether it was the correct payment for his future loss of earning capacity and for his entitlement to weekly payments of compensation under the WRC Act. That letter has no significance to the present proceeding. If it is a request under the WRC Act, then such rights (if any) as he may have to have the request considered would arise under that Act. This Court does not have jurisdiction to determine rights under the WRC Act. If it is a request outside that statutory source, there is no basis shown by which the request is made pursuant to a legal right enforceable in this Court.

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