Kowalski v Mitsubishi Motors Australia Ltd

Factual Background 8 The primary judge said at [3] that Mr Kowalski did not take issue with the factual background stated in the submissions of the Registrar and the Mitsubishi Parties. In the hearing before us, Mr Kowalski challenged that statement. Whether or not Mr Kowalski did take issue with the description of the factual narrative, it is clear that it is accurately stated in the primary judge's reasons. 9 As her Honour observed, the events which resulted in Mr Kowalski's long history of litigation began with his employment by Mitsubishi Motors Australia Limited ("Mitsubishi"). From 1989 onwards, Mr Kowalski brought numerous claims against Mitsubishi in the Workers' Compensation Tribunal and the District Court of South Australia seeking compensation for alleged work related injuries. 10 Central to most of Mr Kowalski's proceedings in the Federal Court, and in other courts and tribunals is the effect of a document entitled Heads of Agreement dated 27 October 1998. The terms of that document are described in [6] of the primary judge's reasons and are set out in full in the judgment of a Full Court in Kowalski v Trustee, Mitsubishi Motors Australia Limited [2003] FCAFC 18 at [7]. 11 The Heads of Agreement were made between Mr Kowalski and Mitsubishi following upon a mediation between them. The Heads of Agreement recited that Mr Kowalski and Mitsubishi had reached agreement on the resolution of all issues between them and wished to record the terms of settlement. Paragraph 1 of the Heads of Agreement stated that Mr Kowalski agreed to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with Mitsubishi. 12 Significantly, Mr Kowalski agreed, in consideration for the payment, not to initiate any legal proceedings with any court, tribunal or body in respect of the matters set out in paragraph 1 of the Heads of Agreement. 13 Notwithstanding the terms of the Heads of Agreement, and in spite of his receipt of the sum of $200,000 paid pursuant to the executed document, Mr Kowalski brought numerous proceedings against the Mitsubishi parties, not only in the Federal Court but in the State Courts of South Australia, the Australian Industrial Relations Commission, the Legal Practitioners' Disciplinary Tribunal and a number of other tribunals. 14 On 19 April 2005 Mitsubishi succeeded in obtaining a declaration from Bleby J in the Supreme Court of South Australia that Mr Kowalski is a vexatious litigant. His Honour made orders prohibiting Mr Kowalski from instituting further proceedings against Mitsubishi or a related entity in the Supreme Court and other State Courts of South Australia; see Mitsubishi Motors Aust Limited v Kowalski [2005] SASC 154. 15 The orders made by Bleby J have no application in the Federal Court and Mr Kowalski has continued to litigate in this Court. 16 The primary judge set out at [19] of her reasons the citations for the 34 decisions which were relied upon by the Registrar and the Mitsubishi Parties in support of the relief which they sought. Many of the proceedings which are the subject of those decisions were not brought by Mr Kowalski against the Mitsubishi Parties but were brought against other respondents. 17 The other respondents included the Repatriation Commission, the Chief Executive Officer of Medicare Australia, the Superannuation Complaints Tribunal and the Military Rehabilitation and Compensation Commission. 18 Mr Kowalski's proceedings against the Repatriation Commission and the Military Rehabilitation and Compensation Commission arise from complaints made by Mr Kowalski that he suffered certain medical conditions as a result of military service during the period of 18 months from April 1972 to October 1973. Those proceedings, and the proceedings against the other respondents are explained in the detailed description of the various proceedings given by the primary judge.

The Federal Court Proceedings instituted by Mr Kowalski 19 Commencing at [59] of her judgment, the primary judge set out a description and analysis of 34 of the proceedings commenced by Mr Kowalski in the Federal Court which were the subject of the applications to have him declared vexatious. 20 We do not propose to repeat the detailed description of the various proceedings given by her Honour but will endeavour to summarise the nature of the proceedings. We will also refer briefly to some of the more salient remarks made in some of the judgments that were referred to and analysed by the primary judge. 21 Thirty-three of the thirty-four proceedings to which the primary judge referred covered the period from 2001 to 2010. The other proceeding was commenced by Mr Kowalski in 1997 and sought an extension of time to bring proceedings against Mitsubishi for wrongful dismissal. The 1997 proceeding was not claimed to be vexatious. 22 The remaining 33 proceedings fell into a number of different categories. They included the following: Proceedings brought in 2001 seeking compensation and punitive damages arising from Mitsubishi's termination of Mr Kowalski's employment; Proceedings brought in 2007 and 2008 against Mitsubishi & Anor for compensation in relation to the assessment of benefits payable to him out of the Mitsubishi Motors Superannuation Fund and for breaches of the Heads of Agreement as well as certain statutory breaches; Three applications made to Besanko J to disqualify himself from hearing various proceedings; Five applications for judicial review (or appeals on purported questions of law) of decisions of the Administrative Appeals Tribunal and the Superannuation Complaints Tribunal in relation to various claims for disability allegedly arising from Mr Kowalski's military service; An application for leave to appeal against a decision of the Federal Magistrates Court relating to proceedings instituted by Mr Kowalski against his former legal advisors; and Appeals and applications for leave to appeal against every substantive decision adverse to Mr Kowalski in relation to the abovementioned proceedings. 23 In describing one of Mr Kowalski's appeals, namely an appeal to a Full Court from a decision of Besanko J dismissing an application for review of a decision of the Administrative Appeals Tribunal (Kowalski v Repatriation Commission [2010] FCAFC 19), the primary judge in her reasons for judgment at [92], said that Mr Kowalski's approach to the appeal was similar to his approach to many other proceedings. 24 Two relevant features emerge from [7]-[20] of the Full Court's decision in Kowalski v Repatriation Commission [2010] FCAFC 19. The first is Mr Kowalski's allegation that the Tribunal and the judge at first instance "perverted the course of justice" in rejecting his claims. The second is Mr Kowalski's assertion that the Tribunal was biased and that the Judge had "fabricated" his findings. 25 Her Honour drew the following from the remarks of the Full Court: What is also clear from the observations of the Full Court is that Mr Kowalski does not recognise any position between complete agreement with his assertions and bias, prejudice or even corruption. 26 Another Full Court appeal to which her Honour referred was the decision in Kowalski v Military Rehabilitation and Compensation Commission (2010) 114 ALD 8. She said at [117] that the Full Court gave some examples of Mr Kowalski's conduct during the hearing before the AAT which were consistent with Mr Kowalski's conduct as described in other proceedings, as well as in the proceeding before her Honour. She then quoted from [61]-[62] of the reasons of the Full Court. 27 In the quoted passages, the Full Court referred to Mr Kowalski's questioning of witnesses before the Tribunal and instructions given to him by the Deputy President of the Tribunal to cease pursuing irrelevant or repetitive questions. The Full Court then said: These interventions were appropriate and were designed to ensure that time was not wasted by unnecessary questioning of witnesses. Mr Kowalski appeared to believe that he was at large in determining how to conduct his case. He was mistaken in this view and the Tribunal was entitled to confine him within the limits of relevance. The interruptions by the Tribunal were regular rather than constant. They were, nonetheless, justified. The moving party in these interventions was the presiding Deputy President. The suggestion that he thereby acted in such a way as to give rise to a reasonable apprehension of bias, much less actual bias, is unsustainable. At one point in his oral submissions Mr Kowalski was moved to submit that, when the Deputy President ruled that he was not entitled to ask particular questions, this amounted to a "perversion" of justice because the Deputy President "did not want to hear the answer". Mr Kowalski appeared oblivious to the fact that the question was framed in such a way that the answer could not have been helpful to the Tribunal. The attribution of unworthy motives to the Deputy President is objectionable and not supported by any evidence. At another point, Mr Kowalski made the outrageous allegation that the Deputy President was restricting the conduct of his case in order to "protect" a South Australian Supreme Court judge who had acted as counsel in one of the Mitsubishi cases in a South Australian court prior to his appointment to the bench. This allegation was unsubstantiated and had not been raised in the Tribunal in support of an application that the Deputy President should disqualify himself. 28 Her Honour also referred to three judgments of Mansfield J in which he commented upon Mr Kowalski's often repeated assertion that judicial officers or Tribunal members have "perverted the course of justice". One of those judgments was Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42. Mansfield J there said of Mr Kowalski at [34]: He seems to be unable to accept that others might in good faith take a different view about certain things. Whether or not a different view is erroneous, there is no basis for asserting that the person taking that view is attempting to pervert the course of justice, or is lying, or is acting unprofessionally. 29 In the quoted passage from Mansfield J's judgment in that case, his Honour also referred to other judgments in which it has been said that Mr Kowalski is prone to make scandalous, offensive and unsubstantiated allegations about public figures, judges, decision makers and solicitors and counsel appearing against him. 30 In the present case, the primary judge also referred to four judgments delivered in proceedings involving Mr Kowalski after her Honour had reserved her judgment. She said at [183] that "[r]egretfully, they fall into a now familiar pattern". However, as they were delivered after the conclusion of the hearing, she made no express finding that the proceedings were vexatious.

The Primary Judge's reasons 31 The primary judge discussed the relevant principles in some detail. She referred to the sources of power under the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act") and the Rules for the prevention or termination of vexatious proceedings, as well as to the leading authorities on the meaning and application of those provisions. 32 Her Honour noted at [33]-[34] that the Registrar relied on the power conferred by O 21 r 1 and that the Mitsubishi Parties relied on O 21 r 2. She observed that O 21 r 1 gives a general power to the Court to restrain a vexatious litigant on the application of, inter alia, the Registrar, and that O 21 r 2 permits a person against whom a vexatious litigant has brought a proceeding, to apply to the Court for relief. 33 The primary judge pointed out at [38] that: Both rules have in common that a successful applicant for an order or orders under the rules must have established on the evidence that: (a) the respondent has instituted proceedings which were vexatious; (b) at least one of which was instituted in the Federal Court (more than one in the case of O 21 r 2); and (c) has done so, habitually, persistently and without reasonable grounds. 34 Her Honour went on at [39]ff to consider the meaning of the words "institutes a proceeding". She referred to the meaning of the word "proceeding" in the Federal Court Act and to the relevant authorities. Her Honour was satisfied that interlocutory applications fall within the definition and that a proceeding which has been summarily dismissed is a proceeding that may be vexatious if it has the necessary attributes. 35 The primary judge discussed the leading authorities on the question of what constitutes a vexatious proceeding, commencing at [45] of her reasons. She said that for practical purposes the test of whether a proceeding is, in the words of Roden J in Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 ("Wentworth"), "so obviously untenable or manifestly groundless as to be utterly hopeless". 36 Her Honour discussed the meaning of the requirement that the vexatious proceedings be instituted habitually, persistently and without reasonable grounds at [54]ff. The authorities to which she referred emphasise the need for the proceedings to have been brought as a matter of course and as an attempt to re-litigate proceedings that have been conclusively determined adversely to the litigant. 37 The primary judge then turned to an analysis of the proceedings instituted in the Federal Court by Mr Kowalski. We have described some of the proceedings above at [22]ff. 38 Her Honour said that, in his submissions, Mr Kowalski took issue with statements of fact, challenged findings in previous decisions and made allegations of wrongdoing against various persons. She said he also made submissions about two particular issues. The first was that a proceeding which had been summarily dismissed was not a proceeding. The second was that a judgment of Finn J in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370, in which his Honour ordered that a motion seeking to have Mr Kowalski declared vexatious be dismissed, created an issue estoppel. Her Honour rejected both of those submissions. 39 Stone J concluded that all of the requirements of O 21 rr 1 and 2 were satisfied. Her Honour found, as we have said, that Mr Kowalski had instituted 25 vexatious proceedings in the Court. Her Honour also found that he had done so habitually, persistently and without reasonable grounds. Her Honour said at [195]: My analysis of the individual proceedings amply demonstrates that Mr Kowalski, almost as a matter of course, persists in pressing his claims even when those claims have been determined by his entering into a contract, such as under the Heads of Agreement, or by judicial decision. He is not deterred by findings that his claims are unsustainable and that his applications are groundless. He has not been deterred by a succession of costs order (sic) made against him, many of which have been for the payment of indemnity costs. 40 Her Honour went on to say at [196]: Mr Kowalski's response to an adverse decision whether procedural or substantive almost invariably appears to be, not merely that the decision-maker is in error but is biased or corrupt. The number of applications to disqualify themselves made to judges who have presided over the various proceedings bears witness to this approach. The description of Mr Kowalski's persistence given by Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 equally applies to his approach to litigation in this Court. 41 The observations of Bleby J to which Stone J referred pointed to the large number of proceedings brought by Mr Kowalski in the State courts and emphasised that Mr Kowalski had demonstrated an unwillingness or inability to accept decisions on his claims for compensation which had been conclusively and repeatedly determined against him. 42 Stone J said that the proceedings in the Federal Court were largely, but not solely, directed to the Mitsubishi Parties and she had no hesitation in finding that those parties were persons aggrieved within the meaning of O 21 r 2. 43 Her Honour went on to consider whether relief should be given in the exercise of her discretion. She recognised that relief under O 21 is extreme but she considered the balance which is struck by the Rules was in favour of restricting Mr Kowalski's right to commence proceedings by requiring him to obtain the prior leave of the Court. 44 Her Honour made the following salient findings at [201]-[203]: Ultimately the Court's role in proceedings brought before it is to quell the dispute or disputes between the parties. The history of the numerous proceedings brought by Mr Kowalski in this Court and in other courts against Mitsubishi and others shows that Mr Kowalski will not accept a ruling or a decision unless it accords with his view of the merits of his claims. His approach effectively undermines the Court's ability to quell disputes and adds weight to the conclusion that he should be declared a vexatious litigant. Mr Kowalski's conduct in court has been the subject of much comment by judges and other decision makers. He has been described as antagonistic, rude, insulting to counsel and demonstrating little respect for the court. Unpleasant as it is, this conduct is not relevant to the question whether the proceedings he institutes are vexatious and I have not taken it into account in considering that issue. It is, however, relevant to the question of discretion. The harassment of respondents extends well beyond the institution of vexatious proceedings. At the hearing of the present proceedings Mr Kowalski's conduct was such that it was necessary to have frequent short adjournments to allow him to calm down. He persisted in interrupting and talking over counsel and the Court, making insulting and scandalous comments about the whole of the applicants' legal teams and which were addressed to the public in the courtroom. His conduct was so disruptive that it was extremely difficult for counsel to make their submissions and for me to follow them. The transcript captures some of these difficulties but it cannot capture their full flavour. It was greatly to the credit of Mr Duggan, who appeared for the Registrar, and Ms Heath, who appeared for the Mitsubishi parties, that in the face of Mr Kowalski's disruptive behaviour both retained their composure and professional demeanour. Nonetheless it was difficult for them to maintain continuity in their submissions and difficult for me to understand them. 45 She went on to say at [204] that, notwithstanding his continued interruptions, Mr Kowalski was not cut short and was able to make full oral submissions. 46 Finally, her Honour turned to applications made by Mr Kowalski during the course of the hearing for her to disqualify herself. She gave her reasons for refusing to do so at [206]ff. She said the following at [207]: Mr Kowalski's applications for me to disqualify myself were made in the context of my making a ruling which he opposed. In particular this occurred during the cross-examination of the applicant's witnesses. Mr Kowalski repeatedly asked the witnesses to give legal opinions. It was explained to him that the witnesses were not expert witnesses and that their opinions were neither admissible nor relevant. In the face of such rulings Mr Kowalski's usual response was to ask me to disqualify myself on the ground of bias, not allowing him to run his case as he wished or perverting the course of justice. 47 Her Honour went on to say that Mr Kowalski was not prepared to abide by her rulings. She said he persisted in asking the same questions and would not move on. Her Honour then excused the witnesses over Mr Kowalski's objections. She referred to other difficulties in Mr Kowalski's presentation of his case which she said resulted in the need to maintain order in the courtroom so as to allow the case to proceed. 48 Stone J said that in those circumstances she did not consider that "a fair-minded observer" would have a reasonable apprehension of bias.

The judgment of Flick J 49 In his introduction to his reasons for judgment, Flick J referred to the Notices of Motion filed by Mr Kowalski in each appeal seeking an order that the orders made by Stone J "be stayed pending the final determination of the applicant's appeal". 50 His Honour then set out the terms of the orders made by Stone J under O 21 rr 1 and 2 before turning to a consideration of the provisions of O 21, including in particular O 21 r 5. That rule provides that if the Court has made an order under O 21 r 1 or r 2 against any person, the person may be given leave to institute or continue a proceeding only if the Court is satisfied that the proceeding is not an abuse of process and there is a prima facie ground for the proceeding. 51 Flick J considered that an initial question arose as to whether Mr Kowalski needed leave under O 21 r 5 to file the Notices of Appeal which he had already filed against the orders of the primary judge. 52 He then said at [16]: It is ultimately concluded that leave was probably required to even file the Notices of Appeal but that it is unnecessary to express any more concluded view because such leave as is required so as to permit Mr Kowalski to appeal from an interlocutory decision should be refused. 53 In coming to the view that the orders of Stone J were interlocutory, Flick J said at [29] that: Notwithstanding some decisions to the contrary, it is concluded that in this Court an order declaring a person to be a vexatious litigant and requiring that person to obtain the leave of the court to institute or continue a proceeding is unquestionably an interlocutory order. 54 His Honour gave a number of reasons for coming to the view that he should refuse leave to appeal. The principal reason was that he considered that the content of the Notices of Appeal indicated that Mr Kowalski had no real prospects of success on appeal. 55 Flick J rejected a submission from Mr Kowalski that his Honour was functus because, after the hearing of the Notices of Motion, and prior to Flick J's judgment, the appeals were listed for hearing before a Full Court. 56 His Honour made orders dismissing Mr Kowalski's Notices of Motion and refusing leave to appeal in each case.

The relevant principles 57 The relevant principles and the authorities from which they are drawn are stated comprehensively in the reasons of the primary judge. We will endeavour to reduce the principles to the following propositions. 58 First, the remedy for which O 21 rr 1 and 2 provides is an extreme remedy. It denies a person against whom an order is made a fundamental right that every member of our society has of access to a court to seek remedies as a consequence of an alleged infringement of his or her rights: Wentworth at 484; Ramsey v Skyring (1999) 164 ALR 378 at [51] (Sackville J) ("Ramsey v Skyring"). 59 Second, nevertheless, provisions such as O 21 r 1 give effect to an important counter-veiling policy. This is that the Rules are designed to protect the Court's processes against unwarranted usurpation of its time and resources and to avoid loss to those who face actions which lack substance: Ramsey v Skyring at [52]; Jones v Skyring (1992) 109 ALR 303 at 312 (Toohey J) ("Jones v Skyring"). 60 Third, the power to make an order arises when the respondent has instituted a proceeding, or more than one proceeding, which is found to be vexatious. The notion of a proceeding is a broad one and flows from the definition of "proceeding" in s 4 of the Federal Court Act. It includes a substantive proceeding and incidental proceedings in the course of, or in connection with a proceeding, as well as appeals from orders made at first instance: Ramsey v Skyring at [59]; Jones v Skyring at 310-311. 61 However, it may be that not all interlocutory proceedings in a pending action are proceedings instituted for the purpose of O 21 r 1 or r 2. The authorities which support this proviso are decisions of the Supreme Court of New South Wales and do not take into account the broad definition of a proceeding in s 4 of the Federal Court Act: Wentworth at 492; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 (Yeldham J) ("Pedler"). 62 But if those authorities are applicable in the present context, they accept the proposition that certain types of interlocutory application in a pending proceeding are "proceedings" which may enliven the operation of the Rules in relation to vexatious litigants. Attention will then be directed to the nature of the relief that was sought in each interlocutory application, in particular whether it sought to set aside existing orders or to join another party: Wentworth at 491-492; Pedler at 488. 63 Fourth, the terms of O 21 rr 1 and 2 can be satisfied only where a litigant has instituted proceedings in the Court, that is to say in the Federal Court. But in determining whether particular proceedings brought in this Court are vexatious, regard may be had to proceedings in another Court where those proceedings involve the consideration of an issue sought to be vindicated again in the Federal Court: Ramsey v Skyring at [54]; Jones Lang Lasalle (Qld) Pty Limited v Dart [2005] FCA 1614 at [29] (Kiefel J) ("Jones Lang Lasalle"). 64 Fifth, the test of whether a proceeding is vexatious is an objective one. The authorities emphasise the need for an objective determination that the proceeding is without foundation, hopeless, or "utterly hopeless". The weight of authority in the Federal Court suggests that motive or intention is not relevant to the question of whether a proceeding is vexatious: Ramsey v Skyring at [56]-[57]; Jones Lang Lasalle at [30]; cf Wentworth at 490-491. 65 Sixth, as Stone J observed in the primary judgement, it is important not to confuse the question of whether a proceeding is vexatious with the question of whether a particular litigant has habitually and persistently instituted such a proceeding. "Habitually" suggests that the proceedings are instituted as a matter of course and "persistently" suggests determination, particularly in the face of difficulty, with a degree of stubbornness: Wentworth at 492; Ramsey v Skyring at [55]; Jones Lang Lasalle at [41]. 66 Seventh, there may be some tautology in the language of the Rules because the requirement of absence of reasonable grounds adds little to the concept of a vexatious proceeding, The hallmark of a vexatious proceeding will often, although not always, be one which seeks to re-litigate an issue that has been authoritatively determined in other proceedings. Where issues have previously been determined, it will usually follow that the institution of fresh proceedings with respect to the same issue will lack reasonable grounds: Jones v Skyring at 309; Ramsey v Skyring at [57]; Jones Lang Lasalle at [31]. 67 Eighth, a useful description of what constitutes vexatious proceedings instituted "persistently" is to be found in the following passage from the judgment of the New Zealand Court of Appeal in Brogden v Attorney-General (NZ) [2001] NZAR 809 at [21] ("Brogden"), which was cited with approval by the primary judge: What constitutes institution of such proceedings "persistently" will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication. 68 Ninth, where the substantive or jurisdictional requirements of the Rules are met, the Court must determine whether to exercise the discretion to make an order. The exercise of the discretion is informed by the Court's view as to the prospect of the vexatious litigant bringing further proceedings. This is to be considered in light of the full history of the proceedings in the Federal Court and in other Courts: Jones Lang Lasalle at [43].

The status of the appeal 69 A difficult question arises as to the status of Mr Kowalski's appeals in light of the orders made by Flick J refusing leave to appeal. His Honour's orders have been entered and there is no appeal against them. The orders therefore stand unless they are set aside within the limited jurisdiction of the Court to set aside the orders: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303, 308 ("Autodesk"). 70 Three essential questions were debated before us on the issue of the status of the orders. The first was whether there was in truth any application made to Flick J by Mr Kowalski for leave to appeal against the primary judge's orders. This involves a consideration of the transcript of the hearing which took place on 16 May 2011. If his Honour proceeded on the basis of a misapprehension as to the relief sought by Mr Kowalski, this may provide a basis to set aside the orders: Autodesk at 303. 71 The second question was as to his Honour's power to continue to hear the application after 19 May 2011 when the appeals were listed before a Full Court. This question arises because s 25(2)(f) of the Federal Court Act provides that applications for leave to appeal must be heard by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate to hear and determine the application. 72 The third question was whether the orders made by Stone J were final orders. 73 We will address each of those questions.

Did Mr Kowalski make an application for leave to appeal 74 Counsel for the Mitsubishi Parties took us to the relevant portions of the transcript of the hearing of 16 May 2011. The relevant passages appear at pages 145-147 and 164-168 of the affidavit of Ms Claire Gitsham sworn 24 June 2011. 75 The effect of what took place was that there was a debate between his Honour and Mr Kowalski as to whether Mr Kowalski needed "leave to proceed". His Honour seems to have had in mind, at least initially, the possibility that Mr Kowalski needed leave to file the notice of appeal under O 21 r 5. However, Mr Kowalski understood the question to be whether he needed leave to appeal. Initially, Mr Kowalski said he did not need leave to appeal but eventually he said: As a lay person, I'm saying I don't need leave. If I do need leave, well of course I'm applying for it. 76 At the conclusion of the hearing before Flick J on 16 May 2011, his Honour made orders for the Mitsubishi Parties to file and serve submissions by 23 May 2011 as to whether, inter alia, the decision of the primary judge was interlocutory or final and the principles to be applied when considering whether to grant or refuse leave. 77 His Honour's orders also provided for Mr Kowalski to file any submissions on which he wished to rely by 1 June 2011. 78 It seems to us to follow that Mr Kowalski made, albeit in a somewhat unorthodox way, an oral application for leave to appeal which was dealt with partly by oral submissions on 16 May 2011 and by written submissions in accordance with his Honour's orders made on 16 May 2011. 79 In our view, the transcript does not always make clear precisely what species of leave was being discussed, that is to say, leave to institute or continue the appeal under O 21 r 5 or leave to appeal under s 24(1A) of the Federal Court Act. However, ultimately Mr Kowalski's statement that if he needed leave he was applying for it, coupled with his Honour's orders for the filing of written submissions, made it clear enough that what Mr Kowalski was seeking (to the extent necessary) was the grant of leave to appeal against the orders of Stone J. 80 It follows that we do not consider that Mr Kowalski was denied procedural fairness in what took place. Accordingly, we do not see how the jurisdiction to set aside the orders discussed by the High Court in Autodesk can be exercised.

Section 25(2)(f) 81 Flick J noted at [20] that after the conclusion of the oral hearing of the Notices of Motion, both appeals had been listed for hearing in August. However, he did not consider that the setting down of the appeals for hearing rendered him functus: such that it [the Court] as constituted by a single Judge, is denied any power to determine the matters raised by the Notices of Motion. 82 His Honour came to that view contrary to the submission put to him in writing by Mr Kowalski after the listing on 19 May 2011. 83 It is clear from the documentary record of the proceeding before Flick J that the application made to him by Mr Kowalski on 16 May 2011 had not been concluded when the appeal was assigned to a Full Court on 19 May 2011. 84 Under s 25(2)(f) of the Federal Court Act, an application for leave to appeal must be heard and determined by a single judge unless a judge directs that the application be heard and determined by a Full Court or the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 85 Mr Kowalski's application for leave to appeal had already been made and was part heard before his Honour at the time the appeal was assigned to the Full Court. Accordingly, nothing in s 25(2)(f) prevented Flick J from determining Mr Kowalski's application for leave to appeal.

Final or interlocutory 86 The question of whether orders of a judge declaring a litigant to be vexatious and restraining the litigant from instituting further proceedings constitutes a final or interlocutory order has been considered by intermediate courts of appeal in New South Wales, Victoria and Western Australia, as well as by a number of judges sitting at first instance. 87 The Courts of Appeal of Victoria and Western Australia have held that orders made under the provisions of the legislation in force in those jurisdictions in relation to orders against vexatious litigants are interlocutory. There is a division of opinion on this question in a number of decisions of the Court of Appeal of New South Wales. 88 In considering the effect of those decisions on the orders made by Stone J, it is necessary to bear in mind the terms of the legislative provisions (or rules of Court) under which the orders were made. 89 Although not first in point of time, the seminal authority on the question is the decision of the Victorian Court of Appeal in Kay v Attorney-General (Vic) (2000) 2 VR 436 ("Kay"). The leading judgment was written by Chernov JA. His Honour explained, comprehensively at [31]ff, why the order made in that case was interlocutory. 90 As Chernov JA pointed out at [32], the usually accepted test for determining whether an order is final or interlocutory is whether the order appealed from finally determines the rights of the parties in the principal cause between them, having regard to the legal, rather than the practical effect of the order. 91 His Honour cited three well known High Court authorities in support of this proposition, namely Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440, Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246 at 248 and Licul v Corney (1976) 180 CLR 213 at 225. 92 In Kay, the order declaring the litigant to be vexatious was made by Eames J in an application by the Attorney-General of Victoria under s 21 of the Supreme Court Act 1986 (Vic). Chernov JA observed at [34] that the order was made in the proceeding itself. It did not arise in the course of an existing proceeding, nor was it preliminary to a proposed action in which the substantive claims would be litigated. His Honour then said: Consequently, it might be said that the order here finally determined the rights of the parties and, therefore, the order or judgment was not one 'in an interlocutory application'. Such a conclusion was reached by the NSW Court of Appeal in Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411. 93 However, Chernov JA distinguished Pedler on the ground that Reynolds JA, who delivered the leading judgment, took no account in his reasoning of s 84(3) of the Supreme Court Act 1970 (NSW), which was the analogue of s 21(5) of the Victorian Act. The Victorian provision empowered the Court: at any time to vary, set aside or revoke an order made under sub-section (2) if it considers it proper to do so. 94 Chernov JA then said at [36]: In my view, having regard particularly to the operation of s.21(5) the order in question cannot be said to have a legal effect which finally determines the rights of the parties. Either party can, at any time, seek to have the order varied, set aside or revoked, albeit not on the basis that the decision was erroneous, but by demonstrating a change in relevant circumstances. Any complaint that the decision is wrong in law can, of course, be sought to be pursued by an appeal process, but in the end, even if the order were to remain extant notwithstanding any appeal, it can be varied, set aside or revoked under s.21(5). In those circumstances, it is difficult to see how it can be said that it finally disposes of the rights of the parties inter se. 95 In Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 ("Shaw"), Wheeler JA (with whom Steytler P and Buss JA agreed) held at [18] that the orders under the Vexatious Proceedings Restriction Act 2002 (WA) restraining Mr Shaw from instituting further proceedings and staying existing proceedings were interlocutory. Her Honour referred to the provisions of s 7 of that Act which provided that an order in the terms made under s 4 may be rescinded or varied by the Court or a Judge of the Court in which the order was made. 96 Her Honour went on to say that the presence of a provision to similar effect in Victoria and South Australia led the Court in Kay (and in a South Australian decision referred to below which followed Kay) to conclude that orders restraining proceedings were to be considered interlocutory. 97 The division of authority in New South Wales was referred to by Chernov JA in Kay at [38]. More recently, it was discussed in the judgment of McColl JA, Campbell JA and Sackville AJA in Klewer v Attorney-General (NSW) [2010] NSWCA 219 at [13]ff ("Klewer"). 98 In Klewer at [22] their Honours left open the question of whether the decision in Pedler was correct. They neither endorsed nor disapproved the aspect of Pedler that determined the order in question to be final. 99 The South Australian decision to which Wheeler JA referred in Shaw was Commonwealth Bank v Heinrich (No 2) [2003] SASC 436. In that case, the order was made by Debelle J under s 39(1) of the Supreme Court Act 1935 (SA). Importantly, that Act provided that an order made under s 39(1) may be varied or revoked in similar terms to the legislation in Victoria and Western Australia. 100 Debelle J said at [15] that, on one view, an order made under s 39(1) constitutes a final order because it remains in full force and effect until varied or revoked. An order varying or revoking it would not be made unless there was a material change in circumstances. Those factors, his Honour said, all pointed to the conclusion that the order was final. 101 However, Debelle J went on to say at [16] that the fact that an order under s 39(1) may be varied or revoked is a compelling reason for concluding that the order was not final. He followed the reasoning in Kay and concluded that an order under s 39(1) is interlocutory, 102 What emerges from these authorities is that the critical factor which determines whether the orders made by Stone J are interlocutory or final is the terms of the Rules under which the orders were made, and whether the Rules provide, as in Victoria, South Australia and New South Wales, that the Court may vary or rescind the Orders. Otherwise, as Chernov JA said in Kay, and as Debelle J reiterated in Heinrich, the orders made by Stone J finally determined the rights of the parties having regard to the legal effect of the judgment. 103 The legal effect of the orders made by Stone J under O 21 rr 1 and 2 was to prohibit Mr Kowalski from instituting any further proceeding, including any proceeding against the Mitsubishi Parties without the leave of the Court. 104 As the authorities to which we referred at above at [89]ff make clear, the effect of her Honour's orders is to deny Mr Kowalski a right which is a fundamental principle of our legal system, namely that every person has an unfettered right of access to the courts to seek a remedy for an alleged wrong. In our opinion, this is the legal, rather than the practical effect of her Honour's orders. It might seem unusual that an order having such a profound affect on a person's right of access to the courts should be characterised as interlocutory. 105 Nevertheless, what seems to be critical in the present case is that under O 21 as it stood when the primary judge made her orders, r 4 provided that the Court may from time to time rescind or vary any order made by it under rr 1 or 2. The strong weight of authority in Kay and the other cases to which we have referred is that the effect of O 21 r 4 is to make an order under O 21 rr 1 or 2 interlocutory rather than final. In our opinion, that is the proper approach to take in light of those authorities 106 It follows in our view that the orders made by Flick J should not be disturbed. However, counsel for the Mitsubishi Parties conceded that if we are of the view that the orders made by Stone J were final, it would be open to us to set aside the orders made by Flick J and determine the appeal. 107 It seems to us that in those circumstances, in case we are wrong in coming to the view that her Honour's orders were interlocutory, we ought to address the issues which Mr Kowalski sought to raise on the appeal. In taking this approach, we bear in mind the dictum of Kirby J in Re Attorney-General (Cth); ex parte Skyring (1996) 135 ALR 29 at 31-32 that "it is regarded as a serious thing in this country to keep a person out of the courts".

The issues raised by Mr Kowalski 108 Mr Kowalski raised six principal reasons why his appeals ought to be allowed. 109 First, he submitted that he could not be a vexatious litigant because he had statutory rights to compensation which could not be excluded by the terms of an agreement such as the Heads of Agreement. He referred to a number of authorities to support this proposition including Josephson v Walker (1914) 18 CLR 691, Harrington v Harrington (1981) 155 CLR 317 and Lieberman v Morris (1944) 69 CLR 69. 110 Second, Mr Kowalski submitted that the proceedings brought by the Registrar were not properly commenced because the affidavits on which the Registrar relied were not sworn by him but were sworn by Ms Katrina Bochner, the Deputy District Registrar in the South Australian District Registry of the Federal Court. 111 Third, he claimed that all of his affidavit evidence had to be accepted by the primary judge because it was not contradicted by the evidence of the Registrar and the Mitsubishi Parties and he was not cross-examined on his evidence. 112 Fourth, he claimed that a judgment and orders made by Finn J in Kowalski v MMAL Staff Super Fund Pty Ltd (2007) 242 ALR 370 gave rise to an issue estoppel because Finn J refused, in that matter, to declare Mr Kowalski to be a vexatious litigant. 113 Fifth, Mr Kowalski claimed, in effect, that the primary judge denied him procedural fairness because he contended that her Honour cut short his cross-examination of witnesses and refused to allow him to make all of his oral submissions. 114 Sixth, he claimed that the primary judge ought to have disqualified herself. 115 Apart from those submissions, Mr Kowalski took issue with a large number of findings made by the primary judge, including her statement that the factual background was not challenged. 116 In a number of paragraphs of his Notices of Appeal, Mr Kowalski contended that the primary judge "perverted the course of justice" and "fabricated her decision".

The "statutory right to compensation" 117 The answer to Mr Kowalski's contention that he has a statutory right of compensation which was not excluded by the Heads of Agreement is to be found in the decision of Mansfield J in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Super Pty Ltd [2002] FCA 1153. His Honour's decision was affirmed on appeal: see Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Super Pty Ltd [2003] FCAFC 18. 118 In that case, Mansfield J said at [50] that Mr Kowalski had no prospects of success in his statutory claims and that his claims were excluded by the Heads of Agreement. 119 The Full Court (Ryan, Dowsett & Selway JJ) agreed with Mansfield J and went further. Their Honours said at [17] that to view the Heads of Agreement as simply involving some diminution of Mr Kowalski's statutory rights is to misunderstand the agreement reached. Their Honours went on to say: True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See e.g. Lieberman v Morris (1944) 69 CLR 69 at 80. That is clearly what occurred in this case. 120 Similar submissions by Mr Kowalski were also rejected by Bleby J in his reasons for judgment declaring Mr Kowalski to be a vexatious litigant in the State Courts of South Australia. His Honour addressed the submissions as [282]-[284] and described Mr Kowalski's arguments as misconceived and without substance.

The Registrar's proceeding 121 There is no substance in Mr Kowalski's submission that the Registrar's proceeding was not properly commenced. The fact that the affidavit evidence on which the Registrar relied was not sworn by him is beside the point. There was no requirement that the Registrar swear the affidavits upon which he relied. 122 The decision of a Full Court in von Reisner v Commonwealth (2009) 177 FCR 531, to which Mr Kowalski referred, does not support his argument. 123 In that case the Full Court set aside orders made against a person declaring her to be vexatious and preventing her from commencing proceedings because the moving party proceeded by notice of motion instead of commencing separate proceedings by an originating application. 124 Their Honours (Siopis, Cowdroy and Reeves JJ) were of the view that the Rules, in particular O 21 r 3, required the application to be brought by such a process. What seems to underlie their Honours' reasoning was that, as a matter of substance rather than one of form, the failure to proceed by way of originating application denied the litigant an adequate opportunity to know the case against her and to defend the claim. Their Honours made an express finding at [25] that the appellant was denied natural justice. 125 Here, the Registrar's application was brought in accordance with the Rules. The case against Mr Kowalski was clearly and fully made and he had a more than adequate opportunity to defend it.

No cross-examination on the affidavits 126 Mr Kowalski's submission that the primary judge was bound to accept his evidence because it was not contradicted or cross-examined upon is not correct. 127 The contentions in Mr Kowalski's affidavit evidence, insofar as they went to any issue in the proceedings, were met by the evidence adduced by the Registrar and the Mitsubishi Parties. That evidence established an extensive record of proceedings brought by Mr Kowalski which formed the subject matter upon which the primary judge was satisfied that Mr Kowalski has habitually, persistently and without reasonable grounds instituted numerous vexatious proceedings in this Court. 128 Mr Kowalski relied upon the decision in Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 ("Levinge") to support the proposition that her Honour was bound to accept his evidence because he was not cross-examined. 129 However, as Samuels JA said in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 567-568, if that is the effect of what Mc Hugh JA said in Levinge at 560, it is not correct or consistent with Australian authority. There is no requirement that a court must accept evidence that is not the subject of cross-examination, particularly where the evidence is contradicted by other evidence: JD Heydon, Cross on Evidence (LexisNexis Butterworths, 7th ed, 2002) at 543[17460].

Issue estoppel 130 The claim of issue estoppel was rejected, correctly, by the primary judge at [75]. 131 As her Honour observed, the decision made by Finn J refusing to declare Mr Kowalski to be vexatious was made on the facts that were before him in that application. 132 The orders then made by Finn J were interlocutory and were not of a character that could give rise to an issue estoppel preventing any later application for orders under O 21 rr 1 or 2 upon the basis of new grounds supported by additional evidence. 133 In any event, as the later judgments of Finn J show, the claims made by Mr Kowalski did not disclose a reasonable cause of action. The primary judge addressed those judgments and the effect of them at [76]-[79].

The "interruptions" 134 The primary judge described Mr Kowalski's conduct at the trial and the need for frequent short adjournments at [203] of her reasons. 135 Her Honour made an express finding at [204] that Mr Kowalski was not cut short in his address and was able to make full oral submissions. 136 Her Honour described the interruptions which took place during Mr Kowalski's attempts to cross-examine witnesses at [207]-[208]. 137 An examination of the transcript, in particular the transcript references set out in the written submissions of counsel for the Mitsubishi Parties at [25] bears out the force of the findings made by the primary judge. 138 It is clear that the interruptions were caused by Mr Kowalski's disorderly behaviour and his refusal to abide by the rulings on evidence given by the primary judge. It is also clear that, notwithstanding Mr Kowalski's failure to conform to the reasonable standards expected of all litigants, he was not denied a fair opportunity to present his case.

Disqualification 139 The primary judge stated and applied the correct test for refusing to disqualify herself under the apprehension of bias principle stated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8] and Smits v Roach (2006) 227 CLR 423 at [53], [56] and [114]-[147]. 140 Her Honour explained the need to maintain order in the courtroom at [208]. Her reference to a "fair-minded observer" was plainly a reference to a fair-minded lay observer within the principle stated by the High Court.

General Observations 141 There is no error in the primary judge's reasons. She correctly identified and applied the jurisdictional criteria stated in the Rules and in the authorities to which we have referred. 142 Her Honour comprehensively considered the proceedings relied upon by the Registrar and the Mitsubishi Parties in support of Orders declaring Mr Kowalski to be vexatious. She was correct in finding that 25 proceedings instituted by Mr Kowalski in the Court were vexatious. 143 Mr Kowalski's submission that proceedings instituted by him but dismissed summarily were not "proceedings" within the meaning of s 4 of the Federal Court Act is wrong. The power to declare a person to be vexatious is enlivened where the person has instituted one or more vexatious proceedings in the Court. A proceeding which is hopeless and is summarily dismissed for that reason may also be vexatious. 144 Moreover, for the reasons explained by Sackville J in Ramsey v Skyring at [59], interlocutory proceedings brought within the course of an existing proceeding will usually be proceedings for the purpose of the Rules relating to vexatious litigants. This flows from the wide definition of "proceeding" in s 4 of the Federal Court Act and the context of an application to declare a person to be vexatious. 145 As to the question of whether Mr Kowalski has habitually, persistently and without reasonable grounds instituted proceedings in the Federal Court (or another Australian Court), the primary judge said at [195] the facts speak for themselves. She explained in plain terms why this is so. Her Honour's analysis of the many proceedings in this Court demonstrated that the relevant jurisdictional criteria were satisfied. 146 As Sackville J observed in Ramsey v Skyring at [51]-[52], it is a serious thing to keep a person out of the courts and this is acknowledged in the stringent requirements of O 21 rr 1 and 2. This requirement is not merely that the litigant has instituted a vexatious proceeding in the Court but that he or she has habitually, persistently and without reasonable grounds instituted other vexatious proceedings. 147 The primary judge's finding that Mr Kowalski has, as a matter of course, persisted in pressing his claims, notwithstanding that they have already been determined by the Heads of Agreement or by previous judicial decisions is more than amply borne out by the incontrovertible evidence of Mr Kowalski's long history of proceedings. 148 As her Honour said, the record shows that Mr Kowalski is not deterred by findings that his claims and applications are unsustainable and groundless. She found that Mr Kowalski's response to an adverse decision of any kind is, almost invariably, to allege, not merely error but that the decision-maker is biased or corrupt. These findings are amply supported by Mr Kowalski's allegations, which seem to be something of a mantra repeated in case after case, that the judge has perverted the course of justice and fabricated his or her reasons. 149 Her Honour's adoption of the reasons of Bleby J, when addressing the question of persistence, as applicable to Mr Kowalski's approach to litigation in this Court is also amply demonstrated by the record of the decisions in this Court to which her Honour referred. 150 As Bleby J said in the decision in the Supreme Court of South Australia at [278], Mr Kowalski has continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many previous occasions. He has demonstrated his unwillingness or inability to accept decisions on his claims which have been conclusively and repeatedly determined against him. 151 These findings were more than sufficient to satisfy the criteria stated in the Rules, namely that the person has habitually, persistently and without reasonable grounds, instituted other proceedings in the Court. They satisfy the explanation of the meaning of those terms stated in authorities such as Wentworth at 492 and Ramsey v Skyring at [55]-[56]. 152 The proceedings also satisfy the test of "persistence" stated in the New Zealand authority of Brogden. The proceedings lack reasonable grounds. They are not small in number but are quite large and they clearly represent an attempt to re-litigate issues already conclusively determined against Mr Kowalski. The proceedings have been accompanied by extravagant and scandalous allegations which Mr Kowalski has no prospect of substantiating. 153 Having found that the jurisdictional criteria stated in O 21 rr 1 and 2 were satisfied, her Honour turned to the exercise of the discretion to make the declarations and orders sought. She took into account the history of Mr Kowalski's litigation and weighed in the balance the seriousness of the relief which was sought and the need to protect potential respondents, including the Mitsubishi Parties, and the community in general from the consequences of frequent, habitual and groundless litigation. 154 Her Honour's approach was in accordance with the Rules. She followed the approach stated in many authorities, including that stated by Kiefel J in Jones Lang Lasalle at [43]. There was no error of principle in the exercise of her Honour's discretion to make the declarations and orders against Mr Kowalski. Indeed, it is impossible to see that any other course of action was available to the primary judge.

Conclusion and Orders 155 Since we have come to the view that Flick J was correct in determining that the orders made by Stone J were interlocutory, and that an application for leave to appeal was made to Flick J in each matter, there is no basis upon which his orders refusing leave to appeal can be set aside. 156 Nevertheless, in case we are wrong in coming to that view, it follows from our consideration of the judgment of Stone J, and of the issues sought to be raised on the appeal, we would have dismissed the appeal in each case if we had come to the view that the appeal was competent. 157 In the circumstances: 1. We refuse to set aside the orders made by Flick J on 7 June 2011; 2. We declare the appeal in each matter to be incompetent; and 3. We order Mr Kowalski to pay the costs of and incidental to the hearing before the Full Court on 19 August 2011, including the costs of and incidental to the directions hearings before Jacobson J on 15 and 29 June 2011. I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, Siopis and Nicholas.