Kowalski v Mitsubishi Motors Australia Ltd

background 23 On 15 December 2008, Mitsubishi issued a Notice of Motion seeking the following orders: 1. The applicant's amended originating process filed pursuant to leave granted by the Honourable Justice Besanko on 4 December 2008 be set aside for want of jurisdiction. 2. The proceeding be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that it has no reasonable prospects of success. 3. The proceeding be summarily dismissed pursuant to O 20 r 5 of the Federal Court Rules on the basis that [it] is frivolous or vexatious and is an abuse of the process of the Court. 4. In the alternative to Orders 1 and 2, the Amended Statement of Claim filed pursuant to leave granted by the Honourable Justice Besanko on 4 December 2008 be struck out pursuant to O 11 r 16 of the Federal Court Rules on the basis that it discloses no reasonable cause of action, is frivolous and vexatious and is embarrassing. 24 On 18 December 2008, the applicant by way of a Notice of Motion sought the following orders: 1. Paragraph 1 of the respondent's Notice of Motion dated 15 December 2008 be struck out or dismissed on the grounds that the Federal Court's jurisdiction has been enlivened by the Trade Practices Act 1974(Cth). 2. Paragraph 2 of the respondent's Notice of Motion dated 15 December 2008 be struck out or dismissed on the grounds that the applicant has a very good prospect of success because the Federal Court must not aid wrongdoers like the respondent in this case. 3. Paragraph 3 of the respondent's Notice of Motion dated 15 December 2008 be struck out or dismissed on the grounds that the applicant's claims against the respondent are not frivolous or vexatious or an abuse of the process of the Court, however, the Federal Court must not aid wrongdoers like the respondent in this case. 4. Paragraph 4 of the respondent's Notice of Motion dated 15 December 2008 be struck out or dismissed on the grounds that the applicant's claims against the respondent disclose a very good cause of action against the respondent and the claims are not frivolous or vexatious or embarrassing, however, the Federal Court must not aid wrongdoers like the respondent in this case. 5. Costs of and incidental to this Notice of Motion on an indemnity basis because the Federal Court must not aid wrongdoers like the respondent in this case. 25 On the applicant's motion of 12 November 2008 that Besanko J disqualify himself from further application, his Honour gave reasons for dismissing that application: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. The reasons for refusing the applicant's application are set out in those reasons, and on 3 February 2009 Mansfield J refused an application by the applicant for leave to appeal from that decision. 26 The proceedings involving Mitsubishi are quite separate from proceedings the applicant has brought against the Repatriation Commission, but in the Repatriation Commission proceedings, an application that Besanko J should disqualify himself in those proceedings was dismissed: Kowalski v Repatriation Commission [2009] FCA 794. 27 The further claim by the applicant that Besanko J should disqualify himself in the Mitsubishi proceeding because in dismissing the applicant's appeal in the Repatriation Commission proceedings Besanko J "fabricated [my] decision", is quite without substance. 28 There was no denial by Besanko J of any right of the applicant to be heard. The fact that a judge does not accept submissions made by a party does not provide a sufficient basis for an allegation of actual or ostensible bias.

the applicant's case before the primary judge 29 The applicant brought a proceeding in the Federal Court against Mitsubishi. He had filed an Amended Application and an Amended Statement of Claim, and Mitsubishi had been excused from filing a defence pending determination of Mitsubishi's Notice of Motion seeking that the Amended Statement of Claim be struck out and the proceeding be dismissed. The relief claimed by the applicant in the Amended Application and Amended Statement of Claim was: 1. An order that the respondent pay the applicant his "correct statutory and legally entitled workers compensation benefits plus compound interest since 16 August 1991, to be determined by the Honourable Federal Court"; and 2. An order that the respondent pay the applicant "compensation and punitive damages for the unwarranted stress and the anxiety that MMAL has deliberately and consciously placed the applicant under from 16 August 1991 up to 4 December 2008, by refusing to pay the applicant his correct statutory and legally entitled Compensation benefits, to be determined by the Honourable Federal Court". 30 Besanko J observed that it was not apparent on the face of those claims how federal jurisdiction was engaged. 31 The Amended Application and Amended Statement of Claim refer to sections in the Trade Practices Act 1974 (Cth) (s 51AC and s 52), the Fair Trading Act 1987 (SA) (s 58(b) and (g)) and the Misrepresentation Act 1972 (SA) (ss 4,6,7 and 8) and to alleged breaches of contract, misrepresentation, unconscionable conduct, fraud, breach of trust or bad faith, "wilful default", undue influence and negligence. The Amended Application and Amended Statement of Claim also refer to various sections in Part 5.8A of the Corporations Act 2001 (Cth), but, in the course of his oral submissions, the applicant said that he was not pursuing a claim in relation to these sections. 32 The origin of the long history of litigation by the applicant against Mitsubishi is that the applicant was an employee of the respondent. He claimed and claims that he suffered a number of injuries in the course of his employment for which the respondent was and is liable to pay compensation. He has instituted a number of actions against Mitsubishi, and an important event in that history is an agreement called a "Heads of Agreement" entered into on 25 October 1998 signed not only by Mitsubishi and the applicant, but the applicant's wife. 33 In the recitals, it is recorded that: Kowalski and [Mitsubishi] have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement. 34 The primary judge records at [19] of his reasons: At the time the Heads of Agreement was entered into, there were outstanding matters between the parties in the specialist workers compensation tribunals and courts in the State of South Australia. As a result of the parties entering into of the Heads of Agreement, various steps were carried out in relation to those matters. Later, the applicant sought to have those acts or their effects reversed on the ground that the respondent had been guilty of fraud and misrepresentation. His attempts were unsuccessful: Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93; Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76. There is no dispute that the respondent paid the moneys it was liable to pay under the Heads of Agreement. 35 It is not in dispute that on 19 April 2005, Bleby J in the Supreme Court of South Australia made a "vexatious litigant" order in respect of litigation against Mitsubishi or related corporations, prohibiting the applicant from bringing any proceeding against those parties without the leave of the Court. That prohibition did not apply to litigation in the federal courts. 36 In these proceedings in the Federal Court, the primary judge concluded that the relevant pleading did not appear to involve the pleadings of material facts [Order 11 rule 2A of the Federal Court Rules]. However, the essence of the applicant's claims were that Mitsubishi had breached a particular clause of the Heads of Agreement requiring the preparation and execution of documents to bring the agreement into effect; that Mitsubishi had breached or contravened s 23 of the Health and Other Services (Compensation) Act 1995 (Cth); and that Mitsubishi had breached the various statutory provisions and common law doctrines consequent on its view as to its liability to pay compensation to the applicant. 37 Each of these three bases was considered by Besanko J. His Honour, after giving considered reasons leading to his conclusions, found: 41 The amended statement of claim does not identify an arguable cause of action which is within the jurisdiction of this Court. As pleaded, the references to s 51AC and s 52(1) of the Trade Practices Act represent no more than a colourable attempt to engage federal jurisdiction. 42 The difficulty in giving judgment on any of the claims under s 31A of the Federal Court of Australia Act 1976 (Cth) is in discerning precisely what claims are being made. It is very difficult to discern where one "claim" ends and another begins. 43 In my opinion, the appropriate order is an order dismissing the proceeding. There are two possible routes to that conclusion. First, under O 20 r 5 of the Federal Court Rulesa proceeding may be dismissed if it is an abuse of the process of the Court. A proceeding is an abuse of process where it is foredoomed to fail: Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378 at 393 per Mason CJ, Deane J and Dawson J. As presently pleaded, the proceeding is doomed to fail. Not only is the proceeding doomed to fail as presently pleaded, but I am satisfied that there is no claim of the type advanced. The applicant has already amended once and he has put forward a number of affidavits and written submissions in respect of his "claims", all of which I have read carefully. There is no suggestion that he has a claim either at all or at least a claim which would engage the jurisdiction of this Court. The other route to the same conclusion is that I have no doubt that the amended statement of claim does not identify an arguable cause of action and is embarrassing under O 11 r 16 of the Federal Court Rules. It must be struck out. A party faced with such conclusions is often given the opportunity to replead his or her case. However, that opportunity is not always given and ultimately, whether it is given, depends on the circumstances of the case. It is not appropriate to afford such an opportunity in this case. The applicant has had ample opportunity to articulate a case and, in all the material he has put forward, there is nothing to suggest that he has a claim. 38 In his submissions to this Court, the applicant has plainly misunderstood that in a pleading, assertions or statements of his position in relation to points in contention do not constitute a pleading of material facts. 39 By way of examples only, the applicant pleaded in paragraph 3.3 of the Amended Statement of Claim: 3.3 On 28 February 2003 Justice Ryan, Justice Dowsett and Justice Selway said on page 13 in par 20 of their decision in Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 that "It should also be pointed out that the appellant's claim against the Employer would seem to be based primarily upon common law. … It may be that the appellant could plead some claim based upon the Trade Practices Act 1975 (Cth) but he has not yet done so. … Of course, the appellant is unrepresented and considerable allowance must be made for this. Presumably that is why Mansfield J did not base his reasons in relation to the Employer on any issue of jurisdiction." (Emphasis in the original). 40 And in paragraph 8 of the Amended Statement of Claim: In October and November 1998 and after that date MMAL had a statutory and a legal obligation to correctly determine the amount of workers compensation benefits that it had a statutory and a legal liability to pay to the applicant according to the terms, provisions and the spirit of the Workers Rehabilitation and Compensation Act 1986 (SA), however, MMAL deliberately and consciously failed to do so, therefore, from 16 August 1991 and from October and November 1998 MMAL has deliberately and consciously placed the applicant under unwarranted stress and the anxiety. The applicant repeats paragraph 4 herein. 41 In paragraph 5 of the applicant's written submission, it is said: Justice Besanko erred in law, he pervert [sic] the course of justice and he was bias at law against the appellant because he falsely alleged in par 30 of his decision that "It is no easy task to discern the real matters raised by the applicant in his amended statement of claim …" (Emphasis in the original). 42 In paragraph 6 of those submissions, it is said: Justice Besanko erred in law, he perverted the course of justice and he was bias at law against the appellant because he falsely alleged in par 31 of this decision that "The obligation in s 23 of the Health and Other Services Act occupies a central place in the applicant's claims …" (Emphasis in the original). 43 Paragraph 7 is a duplication of paragraph 6. 44 The reason why each of these grounds is pursued is said to be: …because of the grounds found in par's 1 to 1.3 above and the facts found in AB-D [Volume D of the Appeal Books] p1 and 2 and p 43-53, Justice Besanko's allegation is not true or correct. 45 In respect of each of the grounds referred to in paragraphs 5, 6, and 7, whether the stated finding is true or correct does not provide any basis to impugn the primary judge's conclusion. 46 The written submissions of the applicant also allege that "Justice Besanko erred in law, he perverted the course of justice and he was bias at law against the applicant" in respect of various findings his Honour made, set out in paras [8] to [16] of the applicant's written submissions. 47 The applicant in those paragraphs sought to impugn the primary judge's "findings", which were expressed as follows: [36] I include in my consideration of this claim not only an arguable failure to comply with s 23 of the Health and Other Services Act, but also an arguable failure to prepare and execute a Form 5 (see [23]). … [37] Although it is not entirely clear, it may be that the applicant claims that the mere fact that the respondent failed to comply with s 23 of the Health and Other Services Act gives him the right to claim relief against the respondent. … [38] … the pleading is deficient because no material facts relevant to causation are pleaded and it is embarrassing because it contains pleas of evidence and irrelevant material. … [39] I agree with the respondent's submission that these pleas are plainly deficient because there are no material facts pleaded in support of the claim. That conclusion alone supports an order striking out the relevant pleas. … [40] … Leaving aside questions of whether the respondent engaged in conduct in "trade or commerce", of whether, for the purposes of s 51AC of the Trade Practices Act, the conduct was engaged in in [sic] connection with the supply or acquisition of goods or services, of whether it is an essential element of any claim by the applicant that an order be made setting aside the Heads of Agreement including an order that the applicant repay the moneys paid thereunder, and of whether the relief claimed is the proper relief and can be granted by this Court, nothing has been put by the applicant in all the material he has put before the Court to suggest the circumstances I have identified could arguably give rise to a characterisation of conduct of the respondent as unconscionable within s 51AC of the Trade Practices Act or misleading or deceptive or likely to mislead or deceive within s 52(1). … [41] The amended statement of claim does not identify an arguable cause of action which is within the jurisdiction of this Court. As pleaded, the references to s 51AC and s 52(1) of the Trade Practices Act represent no more than a colourable attempt to engage federal jurisdiction. … 48 In paragraph 15 of the applicant's submissions, the applicant submitted: Justice Besanko erred in law, he perverted the course of justice and he was bias at law against the appellant because he falsely alleged in par 43 of his decision that "In my opinion, the appropriate order is an order dismissing the proceeding … As presently pleaded, the proceeding is doomed to fail. Not only is the proceeding doomed to fail as presently pleaded, but I am satisfied that there is no claim of the type advanced. … There is no suggestion that he has a claim either at all or at least a claim which would engage the jurisdiction of this Court. The other route to the same conclusion is that I have no doubt that the amended statement of claim does not identify an arguable cause of action and is embarrassing under O 11 r 16 of the Federal Court Rules. It must be struck out…."(Emphasis in the original). 49 Each of these findings, which the applicant alleges constitutes a "false allegation" by Justice Besanko, is said to be based on "the grounds found in par's 1 to 1.3 above and the facts found in AB-D p2 and p43-53". 50 On a close examination of all of the material which the applicant wishes to rely on, in our judgment, the conclusions by the primary judge were correct for the reasons which he gave. The Amended Statement of Claim was liable to be struck out because it contained no pleading of material facts to support the alleged claims, as well as pleading much embarrassing or irrelevant matter, and as the additional material, including the further evidence put before this Court and the submissions of the applicant, did not disclose any arguable claim, the proceedings were doomed to fail, as the primary judge determined. 51 In those circumstances, and having regard to the fact that the Amended Statement of Claim was the second attempt to draft a basis for his proceeding, it was open to the primary judge not to grant a further opportunity to replead. It is clear on the evidence before his Honour that such an opportunity would have been futile. 52 The pleading by the applicant does not disclose any arguable cause of action, and the primary judge was right so to conclude. 53 The applicant's application for leave to appeal should be dismissed with costs. 54 It is appropriate in the circumstances, in respect of the reservation of costs of the Notices of Motion determined by Mansfield J on 9 November 2009, that the applicant pay the costs of those Notices of Motion, which had been reserved by Mansfield J to this Full Court. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Emmett and Jacobson.