Kowalski v MMAL Staff Superannuation Fund Pty Ltd

1. The application for leave to appeal in the 'Notice of Appeal' filed 6 February 2009 be dismissed.
2. The purported appeal be dismissed as incompetent.
3. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MMAL STAFF SUPERANNUATION FUND PTY LTD ACN 064 829 616

THE COURT: 1 This proceeding purports to be an application for leave to appeal and an appeal from orders made by Finn J (the primary judge) on 5 February 2009 whereby his Honour, on the motion of the respondents to the present proceedings, notice of which was filed 6 June 2008, summarily dismissed the application of Mr Kowalski (the applicant) pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). 2 The matter has a long history. 3 For the reasons which follow, the Court will make the following orders: 1. The application for leave to appeal in the 'Notice of Appeal' filed 6 February 2009 be dismissed. 2. The purported appeal be dismissed as incompetent. 3. The applicant pay the respondents' costs.

Background 4 Kazimir Kowalski ('Mr Kowalski') was born on 7 August 1947. 5 It would appear that Mr Kowalski was employed by Mitsubishi Motors Australia Limited from about January 1964 until 16 March 1994. 6 The Mitsubishi Motors Australia Staff Superannuation Fund was originally constituted by a trust deed dated 30 November 1967 which has since been the subject of several amendments. One such amending deed would appear to have been made on 19 August 1999 between Mitsubishi Motors Australia Limited and the first respondent. Another amending deed would appear to have been made on 14 December 2000 between Mitsubishi Motors Australia Limited and the first respondent and yet another made on 6 December 2002 between Mitsubishi Motors Australia Limited and the first respondent. 7 It would appear that Mr Kowalski ceased to perform work for Mitsubishi Motors Australia Limited on 16 August 1991. On 20 February 1992 he gave as the reason for his ceasing work 'due to emotional distress pathologically intense state of anxiety.' 8 It would not be inappropriate to describe the relationship between Mr Kowalski and Mitsubishi Motors Australia Limited as an acrimonious one. A brief history of the disputation may be found in the judgment of the primary judge of 24 July 2007 (Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (2007) 242 ALR 370. That judgment was given in the first instance proceedings No. SAD 11 of 2007. 9 At [1] - [3] the primary judge said: '[1] This matter has a long history. The applicant, Kazimir Kowalski, has been in dispute with Mitsubishi Motors Australia Ltd (MMAL) from when his employment with that company ceased on 16 March 1994. It is unnecessary for present purposes to outline the very many proceedings he has brought against MMAL and, on occasion, related entities including the present respondent, Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd (MMA Super) in various courts and tribunals in South Australia including in two instances actions in the Federal Court - both of which were summarily dismissed: see Kowalski v Mitsubishi Motors Australia Ltd (1998) 88 FCR 55 and Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund Pty Ltd [2002] FCA 1153 (Kowalski (2002)); affd [2003] FCAFC 18 (Kowalski (FCAFC)). A history of those proceedings (more than forty in number) is contained in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. In that particular matter he was declared to be a vexatious litigant and has been prohibited from instituting further proceedings against MMAL or a related entity in state courts in South Australia without the leave of the Supreme Court. [2] The present proceedings in this court is in substance the same as that which he sought to institute against MMA Super in the South Australian District Court. The leave he initially obtained to commence that proceeding was subsequently set aside and, on 24 January 2007, it was struck out. Acting, apparently, on the advice of a person who happens to be a lawyer, Mr Kowalski filed the present proceeding on 25 January 2007. [3] The statement of claim (which is presently under challenge) is substantially the same as an amended statement of claim that he had filed in the District Court proceedings. Though the matters pleaded relate essentially to complaints about the conduct of MMA Super in its administration of the superannuation fund in which he claims to have certain entitlements, the manner in which he has sought to bring what is essentially a trusts matter within this Court's jurisdiction is by pleading a contravention of s 52 of the Trade Practices Act 1974 (Cth) (the TP Act) although he does not in express terms claim relief under either ss 82 or 87 of the Act. However, s 87 was raised in his submissions.' 10 The matter which was before the primary judge and the subject of his judgment of 24 July 2007 was a Notice of Motion seeking orders dismissing Mr Kowalski's claim on the basis that it was not within the jurisdiction of the Federal Court of Australia, that it was otherwise frivolous, vexatious or an abuse of process or that the applicant was a vexatious litigant or otherwise requiring Mr Kowalski to give security for costs. 11 The primary judge ordered that the proceeding be dismissed in so far as it claimed relief under the provisions of the Trade Practices Act 1974 (Cth). Inter alia, he also granted leave to Mr Kowalski to file and serve an Amended Application and Statement of Claim on or before Friday 17 August 2007. 12 It would appear that the second respondent was joined as a party to the proceedings because by a deed the trust fund was transferred to it as trustee on 15 June 2006. 13 Mr Kowalski availed himself of the leave granted by the primary judge to file and serve an amended application and statement of claim. Thereupon, the respondents moved for orders that either the proceedings be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') or that the amended statement of claim be struck out under Order 11 rule 16 of the Federal Court Rules as disclosing no reasonable cause of action. By his judgement handed down on 20 May 2008 (Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) [2008] FCA 691 ('Kowalski No 2')) the primary judge ordered that the amended statement of claim be struck out and granted leave to Mr Kowalski to file and serve a further amended application and further amended statement of claim. In his reasons for judgment the primary judge said at [1]: '1 The motion before me is a predictable sequel to the circumscribed leave I gave Mr Kowalski in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 to file and serve an amended application and statement of claim. … I intend to take the latter course [striking out the amended statement of claim under Order 11 rule 16 of the Federal Court Rules] for the reason that, while the pleading is misguided in its thrust, it cannot be said that the underlying complaint that appears to inform it may not suggest a reasonable cause of action. In their submissions the respondents, while not admitting this to be the case, have come close to identifying that cause of action, though without conceding that it is reasonably arguable or that they do not have a good defence to it.' 14 On 23 May 2008 Mr Kowalski filed a Further Amended Application and a Further Amended Statement of Claim. In the preamble to the Further Amended Application Mr Kowalski indicated that he sought relief from the respondents: '… for a breach of the relationship of potential beneficiary and trustee by the Respondents of a superannuation fund, on or about 3 November 2005, which the Plaintiff had entered into with the Respondents on or about 17 March 1970, a breach of the Respondents fiduciary obligation or duty to the Applicant under the Trust Deed and Rules, a breach of good faith, breach of contract, breach of section 13 of the Insurance Contracts Act 1984, fraud and Respondents negligence in the respondent's not performing their duty to the applicant.' 15 The substantive relief sought by Mr Kowalski as recorded in the Further Amended Application was as follows: '1 Payment from [the respondents], of his correct statutory and legally entitled Total and Permanent Disablement Benefit plus compound interest since 16 March 1994 in the sum of $280,000.00 or to be determined by the Honourable Federal Court. 2 Payment from [the respondents], compensation and punitive damages for the unwarranted stress and the anxiety that [the respondents] has deliberately and consciously placed the applicant under from 16 March 1994 up to 3 November 2005 by refusing to make a determination on his claim for a TPD benefit, dated 3 November 2005, to pay the applicant his correct statutory and legally entitled TPD benefit in the sum of $280,000.00 or to be determined by the Honourable Federal Court.' 16 By a Notice of Motion filed 6 June 2008 the respondents sought the following relief: '1. 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. 2. The proceeding be summarily dismissed pursuant to O 20 r 5 of the Federal Court Rules on the basis that is (sic) frivolous or vexatious and is an abuse of the process of the Court. 3. In the alternative to Orders 1 and 2, the further amended statement of claim filed on 23 May 2008 be struck out pursuant to O11 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. 4. …' 17 The respondent's Notice of Motion was heard on 19 August 2008 and decided on 5 February 2009. The orders made by the primary judge on 5 February 2009 (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (No 3) [2009] FCA 53 ('Kowalski No 3')) under s 31A of the Federal Court Act were as follows: '1. The respondents' motion be allowed. 2. The application be dismissed. 3. The applicant pay the respondents' costs including any reserved costs and costs ordered to be the respondents' costs in the cause.'

The Current 'Appeal' 18 On 6 February 2009 Mr Kowalski as 'Applicant' filed a 'Notice of Appeal' whereby he purported to appeal from the whole of the judgment of the primary judge given on 5 February 2009. 19 Recognising that the judgment of the primary judge of 5 February 2009 may be properly classified as interlocutory, the primary orders sought by Mr Kowalski in his 'Notice of Appeal' were as follows: '3.1 Leave to appeal against [the primary judge's] decision if it is an interlocutory decision. 3.2 That the appeal be allowed. 3.3 That [the primary judge's] decision and his orders be set aside or revoked. 3.4 That the applicant's claim for damages be listed for a hearing on the merits before an unbiased Judge according to law.' 20 In paragraph 2 of the 'Notice of Appeal' Mr Kowalski recorded three questions of law which he wished to raise on the appeal and in paragraph 4 he effectively restated those questions at the same time proffering his answers to them. Paragraph 4 was as follows: '4 GROUNDS: 4.1 [The primary judge] erred in law, because he protected and he aided the first and the second respondent, although, the first and the second respondent is a wrongdoer. (See Gala v Preston (1991) 172 CLR 243) 4.2 [The primary judge] is bias at law (sic) and he erred in law because he rewarded the first and the second respondent, by making an order for costs against the applicant, although, the first and the second respondent is a wrongdoer. (See Gala v Preston (1991) 172 CLR 243) 4.3 [The primary judge] erred in law and he is bias at law (sic) because he failed to give the applicant a further opportunity to clarify and amend his pleading. (See Wills v ABC [2009] FCAFC 6)' 21 Gala v Preston was a case in which the High Court, applying the then familiar approach to the determination of duties of care, held that a passenger in a stolen motor vehicle engaged in a spontaneously planned 'joyride' where the participants had consumed massive amounts of alcohol for many hours prior to the accident which ensued could not claim to be owed a relevant duty of care by the driver, it being impossible for a court to determine what an appropriate standard of care would be in the circumstances. 22 Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 was a case where the primary judge had summarily dismissed the claim brought by Wills, pursuant to s 31A of the Federal Court Act. Wills had claimed that the Australian Broadcasting Corporation broadcast a number of music video clips using video footage which he had allegedly created, without his authorisation. In the light of further evidence admitted under s 27 of the Federal Court Act on the hearing of the appeal, leave to appeal was granted and the order of the primary judge so far as it related to Wills' copyright action was set aside. Rares J held that Wills' appeal was incompetent since the primary judge's dismissal of the proceedings had been interlocutory (at [30]). Emmett J, at [15], agreed with Rares J. The Court proceeded to treat the notice of appeal as an application for a grant of leave to appeal on the basis that, if granted, the appeal would be treated as having been duly instituted. Their Honours granted leave to appeal and then proceeded to determine the appeal favourably to Wills.

Summary dismissal under s 31A 23 Section 31A was inserted in the Federal Court Act by the Migration Litigation Reform Act 2005 (Cth). Section 31A made provision for the Court to give summary judgment for an applicant in relation to the whole or any part of a proceeding upon it being satisfied that the respondent had no reasonable prospect of successfully defending the proceeding or that part of the proceeding. More importantly for the purposes of the present case, it also provided for a judgment in the nature of summary dismissal of the whole or any part of a proceeding on the application of a respondent, in the event that it was satisfied that the applicant had no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. 24 Section 31A relevantly provided: '31A … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, … a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section.' 25 The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration N.L. v. Foyster (1972) 126 CLR 507 ('Theseus Exploration') and also the test for a successful application for summary dismissal as stated by Dixon J, as his Honour then was, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and by Barwick CJ in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 ('General Steel Industries'). See also Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 ('Jefferson Ford') at [45], [57], [63], [124]). 26 The Explanatory Memorandum circulated by authority of the Attorney-General in relation to the Migration Litigation Reform Bill 2005 (Cth) revealed the purpose of the new s 31A of the Federal Court of Australia Act. It relevantly provided: '21. … Section 31A provides that the Court may give summary judgment in a matter where it is satisfied that a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, has no reasonable prospect of success. 22. Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in Dey v Victorian Railways Commissioners … and General Steel Industries Inc v Commissioner for Railways (NSW) … [both of which were summary dismissal cases]. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. 23. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings. …' 27 In his Second Reading Speech in the House of Representatives (Hansard 10 March 2005 at p.3) the Attorney-General said, amongst other things: 'The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. …' A like observation was made by the Minister delivering the Second Reading Speech in the Senate (Hansard 11 May 2005 at p.139). 28 It may be observed that the word 'may' in the expression 'may give judgment' in s 31A(1) and s 31A(2) is, in the context in which it is used, permissive, not mandatory. Furthermore the use of the word 'unmeritorious' in the Explanatory Memorandum and both of the second reading speeches, along with the use of the word 'unsustainable' in both of the second reading speeches, indicates that a generally cautious approach should still be adopted to the exercise of the Court's powers under s 31A. In relation to the use of the word 'may' it is instructive to note the recent observations of Gordon J in Jefferson Ford at [128]. However, in our respectful opinion, the preconditions for the exercise of the relevant power, which require value judgments to be made in the absence of a full and complete factual matrix and full argument thereon, lead us to the view that a discretion is reposed in the judge hearing the relevant application to grant summary judgment. 29 The concept of 'no reasonable prospect of successfully prosecuting' a proceeding, which is a relevant issue where summary dismissal is sought under s 31A(2) of the Federal Court of Australia Act, was addressed by Rares J in Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720. At [43] his Honour said: '… The concept of a party having "no reasonable prospect of successfully prosecuting a proceeding" has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. …' [Emphasis added] At [44] Rares J said: '[44] In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle [a reference to [43] and to Hocking v Bell (1945) 71 CLR 430 at 441-2], and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. …' 30 In White Industries Australia Ltd v FC of T (2007) 160 FCR 298 ('White Industries') Lindgren J said at [50] that s 31A 'is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form'. 31 It remains a matter for a judge hearing a summary dismissal application to exercise some discretion as to whether questions of law that have been raised are so difficult that they ought not to be decided summarily.

Are s 31A judgments interlocutory? 32 The question of whether or not the judgment of the primary judge of 5 February 2009 was interlocutory or not is an important one for consideration in this case. If the judgment was interlocutory, an appeal could not be brought from it 'unless the Court or a Judge gives leave to appeal' under s 24(1A) of the Federal Court Act. 33 The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise it is an interlocutory order (see per McHugh ACJ, Gummow and Heydon JJ in Re Luck (2003) 78 ALJR 177; 203 ALR 1 at [4]; see also Port of Melbourne Authority v Anshun Proprietary Limited [No. 1] (1980) 147 CLR 35 ('Anshun No. 1') at 38). 34 It may be that the practical effect of an order will be such as to render a further application fruitless unless supported by additional relevant facts, but that does not make an order one which finally determines the rights of the parties in a principal cause pending between them (per Taylor J, Owen J agreeing in Hall v The Nominal Defendant (1966) 117 CLR 423 ('Hall v The Nominal Defendant') at 440-441 and 447; see also per Windeyer J at 444; per Gibbs CJ in Carr v Finance Corporation of Australia Limited [No. 1] (1981) 147 CLR 246 ('Carr v FCA') at 248 and, per Mason J, as his Honour then was, at 256-257). 35 Re Luck was an appeal from a decision of Gleeson CJ, exercising the original jurisdiction of the High Court to control its own processes. Ms Luck had sought to issue a Writ of Summons in the High Court naming 32 defendants including judges of the High Court, the Supreme Court of Victoria and the Federal Court of Australia, the Attorney-General of the Commonwealth, medical officers and an unnamed telephonist employed by the Federal Police. 36 McHugh ACJ, Gummow and Heydon JJ summarised the position in that case at [2] of their reasons for judgment as follows: '[2] … Chief Justice Gleeson held that the statement of claim disclosed no cause of action against any defendant, a holding with which we entirely agree. Not only does the writ and statement of claim fail to disclose any recognisable cause of action against any individual defendant, but they seek to join as defendants in one action many people who have nothing in common except that the applicant claims that each of them has tortured her.' 37 The High Court pointed out that it was not necessary to discuss the merits of Ms Luck's claims in any detail because she was seeking to appeal against an interlocutory order, a class of order that required the grant of leave to appeal, and none had been granted. The High Court ordered that Ms Luck's appeal be struck out as incompetent. At [12]-[13], McHugh ACJ, Gummow and Heydon JJ said: '[12] Even if Ms Luck had sought leave to appeal against the decision of Gleeson CJ, we would have refused her application. An application for leave should establish both that the decision, the subject of the proposed appeal, is sufficiently doubtful to warrant a grant of leave and that it is in the interests of the administration of justice for this court to hear it. [13] The writ of summons that Ms Luck attempted to file does not disclose a cause of action against any of the 32 defendants listed. A grant of leave would be futile because an appeal would have no prospect of success.' 38 An order is an interlocutory order when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the Court or does not disclose a reasonable cause of action (per McHugh ACJ, Gummow and Heydon JJ in Re Luck at [9]. 39 There have been numerous cases in the High Court which illustrate orders that are interlocutory and orders that are final applying the test as stated above: · Orders dismissing applications for interlocutory injunctions and for orders striking out matter within a statement of claim, which it was said tended to prejudice and embarrass a defendant and to delay the fair hearing of the suit, are interlocutory (per Dixon, Williams, Webb, Fullagar and Kitto JJ in Pye v Renshaw (1951) 84 CLR 58 ('Pye v Renshaw') at 64, 77). · Orders upholding a demurrer ore tenus to a statement of claim and granting a plaintiff liberty to amend a statement of claim are interlocutory (per Dixon, Williams, Webb, Fullagar and Kitto JJ in Pye v Renshaw at 64, 77). · An order refusing an application for an extension of time within which to institute proceedings against the Nominal Defendant under s 65A(3) of the Traffic Act 1925 (Tas) is interlocutory (per Taylor, Windeyer and Owen JJ in Hall v The Nominal Defendant at 441, 445 and 447). · Orders setting aside an order for substituted service and setting aside orders relating to the deemed validity of service of process are interlocutory (see Licul v Corney (1976) 180 CLR 213. See in particular, per Gibbs J, as his Honour then was, at 225). · An order refusing to set aside a default judgment is interlocutory. It does not, as a matter of law, finally dispose of the rights of the parties, whatever its practical effect may be (see Carr v FCA at 248, 257 and 258). · An order dismissing an application for removal of Family Court proceedings into the High Court is interlocutory (see Bienstein v Bienstein (2003) 195 ALR 225 at 231). · An order staying an action as an abuse of process on the ground that the matters in question which it was sought to raise could and should have been litigated in earlier proceedings was a final one (per Gibbs J, as his Honour then was, Mason and Murphy JJ agreeing, in Anshun No. 1 at 38). 40 In our opinion, a case where summary judgment is given for a respondent in the absence of the full and complete factual matrix and full argument thereon, the Court being satisfied that the moving party has no reasonable prospect of successfully prosecuting the proceeding is no different from a case where an order is made dismissing an action because it is frivolous, vexatious, an abuse of the process of the Court or does not disclose a reasonable cause of action (see Re Luck) or one dismissing an appeal from an order of a Master refusing to set aside a default judgment (see Carr v FCA) (see Zoia v Commonwealth Ombudsmen Department (2007) 240 ALR 624 ('Zoia') per Spender J, Gilmour J concurring, at [14] and [19] and per French J as his Honour then was at [26]). We respectfully disagree with the views expressed by Finkelstein J in Jefferson Ford at [12] that '[i]n an application for summary judgment, the judge resolves the dispute on the merits', and by Gordon J, by way of obiter dicta, at [164] that 'an order granting summary judgment on all claims … is a final order because there are no further substantive rights in issue'. What the judge does, when considering a summary judgment application, is make a determination, on the material then before the Court, as to the prospects of the moving party successfully prosecuting the proceeding. The legal effect of such a judgment is not final. 41 As the Explanatory Memorandum circulated by authority of the Attorney-General in relation to the Migration Litigation Reform Bill 2005 (Cth) and the Second Reading Speeches thereon in the House of Representatives and the Senate reveal, the purpose of s 31A of the Federal Court Act was to strengthen the powers of the Court to give summary judgment in dealing with 'unmeritorious' proceedings and 'unsustainable' cases. 42 In the carefully reasoned judgment of Rares J in Luck v University of Southern Queensland [2009] FCAFC 73 his Honour expressed the opinion that a judgment or order under s 31A(2) that determines that an applicant has no reasonable prospect of successfully prosecuting a proceeding is interlocutory (at [101]). His Honour carefully reviewed the recent authorities on the question including Jefferson Ford Pty Ltd, White Industries, Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364, Simundic v University of Newcastle [2007] FCAFC 144, Zoia, Re Luck, Cockrell v Minister for Immigration and Citizenship [2009] FCA 444, Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179, Owners of The Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404, Dent v Australian Electoral Commissioner (2008) 249 ALR 523, Wills v Australian Broadcasting Corporation, Bonnell v Deputy Commissioner of Taxation (No 5) [2008] FCA 991 and Keynes v Rural Directions Pty Ltd (No 2) [2009] 72 ACSR 264. 43 In Luck v University of Southern Queensland, Graham J expressed his complete agreement with the reasons for judgment of Rares J which he had had the advantage of reading in draft. We see no reason to doubt the correctness of the reasoning of Rares J. We consider that a judgment in the nature of summary dismissal under s 31A(2) of the Federal Court Act is interlocutory. Accordingly, an appeal from the judgment of the primary judge of 5 February 2009 in Kowalksi No 3 was incompetent in the absence of a grant of leave to appeal. 44 Leave to appeal should only be granted if the Court is of the opinion that the decision of the primary judge was attended with sufficient doubt to warrant its reconsideration by a Full Court and substantial injustice would result if leave were refused, supposing the decision to be wrong (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400).

Pursuit of the interests of justice in relation to amendments to pleadings 45 As is invariably the case, the paramount duty of the Court is to see that justice is done and in doing justice Courts have recognised that the rights of both parties to the litigation must be considered (per Asprey JA in Watson v Watson (1968) 70 SR (NSW) 203 at 206). 46 As Samuels JA said in GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716: 'The emollient effect of an order for costs as a panacea may now be consigned to the Alladin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe.' 47 In this context it is instructive to have regard to what the High Court said in Aon Risk Services Australia Limited v Australian National University [2009] 258 ALR 14 ('Aon Risk Services') which was decided on 5 August 2009. In that case the primary judge had granted leave to the Australian National University to amend its case after it reached a settlement with three of the defendants, being insurers, on the third day of a four week period allocated for the trial of the action against those insurers and also the University's insurance broker Aon Risk Services Australia Limited, which had been joined as a party to the proceedings some six months after the commencement thereof. The original claim against Aon Risk Services Australia Limited had been limited to its failure to arrange for the renewal of insurance over some of the property which the insurers claimed was not the subject of insurance. The amended claim was a substantially different one: the University sought to allege that under a different contract for services its broker had been obliged to ascertain and declare correct values to the insurers and provide certain advices to the University regarding insurance. The primary judge considered that the matter was governed by the decision of the High Court in the State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 ('J L Holdings'). The primary judge's decision was upheld by a majority of the Australian Capital Territory Court of Appeal. However, the High Court held that, relevantly, the orders of the primary judge should be set aside and the application by the University for leave to amend, dismissed. In doing so the High Court revisited what had been said by Dawson, Gaudron and McHugh JJ in J L Holdings at 154 namely: '… nothing in that case [Sali v SPC Ltd (1993) 67 ALJR 841] suggests that those principles [proper principles of case management] might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.' 48 In J L Holdings the High Court held that a proposed amendment to a defence should be allowed to raise a new point never previously relied upon. In that case there was a period of about six months between the date when the leave to amend was sought and the anticipated date of commencement of the hearing. 49 J L Holdings was decided some time before principles of case management were incorporated in the rules of various courts in Australia. In Aon Risk Services, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [90]: '90 The overriding purpose of r 21 [a reference to Rule 21 of the Court Procedures Rules 2006 (ACT)], to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia , although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms.' Their Honours observed, at footnote 153, that the Supreme Court Rules 2000 (Tas) and the Federal Court Rules (Cth) appeared to be the only Rules now absent a provision such as r 21. At [92] their Honours said: '92 The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. …' 50 Their Honours then said, at [95]-[96]: '95 … The statements in J L Holdings do not reflect such an understanding [a proper understanding of case management] and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others. 96 An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.' (footnotes omitted) 51 Whilst Aon Risk Services was decided under the Court Procedures Rules 2006 (ACT) with particular focus on Rules 21, 501 and 502, the conclusion reached by Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111] is important and, in our opinion, of general application: '111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases . On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.' 52 The respondents in the present case place particular emphasis on what was said by their Honours in Aon Risk Services at [98], [102] and [112]. It is perhaps appropriate to add a reference to [94] also. At paragraphs [94], [102] and [112] their Honours said: '94 … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd [[1998] EWCA Civ 1894], said that such a concern [regarding the need to ensure that justice is not sacrificed] did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. … 102 … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. … … 112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.' (Emphasis added) 53 It is not relevant to refer to [98] of their Honour's reasons for judgment as the observations there were directed at Rule 21 of the Court Procedures Rules 2006 (ACT) and are not necessarily of general application.

Bias 54 It will be appreciated that the grounds relied upon by Mr Kowalski in the 'Notice of Appeal' focus upon alleged bias on the part of the primary judge. The allegations of bias do not suggest that the primary judge did not bring an open mind to the determination of the issues before him, nor do they assert that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the questions which he was required to decide. Rather, the grounds relied upon seem to be directed at saying that because the primary judge decided the respondents' notice of motion adversely to the interests of Mr Kowalski, the primary judge must have been biased against him. 55 It goes without saying that it is fundamental to the common law system of adversarial trial that trials are conducted by an independent and impartial tribunal (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [3]). However, nothing has been advanced by Mr Kowalski to sustain a finding of bias or apprehended bias on the primary judge's behalf. 56 On the hearing of the application presently before the Court Mr Kowalski sought and was granted leave to rely upon, amongst other things, a transcript of proceedings in another matter in which he was the applicant (Kowalski v Repatriation Commission SAD 3 of 2009) and in which the primary judge said, on 10 February 2009, after he had delivered his reasons for judgment in Kowalski No 3 on 5 February 2009: '… This is a matter in which I feel I ought to disqualify myself, given what I've said in relation to a hearing involving Mr Kowalski previously. … I have referred it to another judge and that other judge will arrange a hearing in the matter - a hearing date for it. … The only comment I would make and I will make this to you, Mr Kowalski, given that I do not have any interest in - I cannot adjudicate the matter - you should think very seriously about what you are doing and you are seriously mistaken in the view that the court has no power to award indemnity costs. I invite no comment from you, I simply make that observation to you. If you wish to proceed with this matter, you do so at your own risk. Do you understand?' Mr Kowalski responded: 'Based on your last decision, your Honour, I can't accept anything you say as being correct.'' His Honour then responded: 'I fully appreciate that, Mr Kowalski, and I'm not going to give you the opportunity ever to make that observation again.' 57 The provocative observations made by Mr Kowalski on 10 February 2009 and the primary judge's response thereto do not in any way support a finding of bias on the part of the primary judge in respect of the decision of 5 February 2009 to which the application presently before the Court relates.

The applicant's claims 58 In the Further Amended Statement of Claim filed 23 May 2008 Mr Kowalski included the following under the heading 'The applicant claims the relief specified in the application as follows:' namely: '23 The applicant seeks relief from the Honourable Federal Court to determine whether, in 1994, the respondent's had made a determination in respect to a claim for a TPD [Total and Permanent Disablement] benefit which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. 24 The applicant seeks relief from the Honourable Federal Court to determine whether, in 1994, the respondent's had provided the applicant with a copy of their written determination in respect to any determination that the respondent's had made in respect to the applicant's TPD benefit which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. 25 The applicant seeks relief from the Honourable Federal Court to determine whether, in 1994, the respondent's had prepared any minutes of a meeting during which the respondent's had made a determination in respect to the applicant's TPD benefit which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. (See clause (2)(3)(f)(g)(j)(i)&(ii) and (2)(4)(b) of the Trust Deed and Rules.) 26 The applicant seeks relief from the Honourable Federal Court to determine whether, in November 2005, the respondent's had made a determination in respect to a claim for a TPD benefit which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. 27 The applicant seeks relief from the Honourable Federal Court to determine whether the respondent's have provided the applicant with a copy of their written determination in respect to any determination that the respondent's had made in respect to the applicant's claim for a TPD benefit, dated 3 November 2005, which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. 28 The applicant seeks relief from the Honourable Federal Court to determine whether, in 2005, the respondent's had prepared any minutes of a meeting during which the respondent's had made a determination in respect to the applicant's claim for a TPD benefit, dated 3 November 2005, which was based on the fact that on 16 March 1994 the applicant's contract of employment was frustrated buy (sic) operation of law as a result of his psychiatric illness. (See clause (2)(3)(f)(g)(j)(i)&(ii) and (2)(4)(b) of the Trust Deed and Rules.) 29 If the Honourable Federal Court makes a finding against the respondent's, then the applicant seeks relief from the Federal Court to make a decision on his claim for a TPD benefit dated 3 November 2005 on the grounds that the respondent's have refused to make a decision on the applicant's claim for a TPD benefit, dated 3 November 2005, therefore, the respondent's have acted in bad faith. … 29.1 In the alternative to par 27 above, If the Honourable Federal Court makes a finding against the respondent's, then the applicant asks the Court to direct the trustee to consider whether, in the circumstances, a cl 1(6) determination should be made on the basis of the Trustee's have acted in bad faith, their culpable and unreasonable refusal and or failure to consider the applicant's TPD benefit, dated 3 November 2005, in accordance with the undisputed fact that on 16 March 1994 the applicant's employer had informed him that as a consequence of the applicant's psychological or psychiatric medical illness his contract of employment with his employed (sic) was frustrated by operation of law, the trustee's have refused and or failed to consider Prof. AC McFarlane's medical report, dated 28 April 1993, and they have refused to determine and or failing to make a determination of the applicant's application for a TPD as a consequence of the fact that on 16 March 1994 the applicant's contract of employment was frustrated by operation of law as a result of his psychological and or psychiatric medical condition. 30 The applicant seeks relief in the form of damages and compensation from the respondents to be determined the Honourable Court on the grounds that in April and May 1994 ASL/MMASSF breached its fiduciary relationship with the applicant of potential beneficiary and trustee of a superannuation fund by refusing to make a correct determination of the applicant's superannuation entitlement in accordance with the undisputed fact that on 16 March 1994 the applicant's employer had informed him that as a consequence of the applicant's psychological or psychiatric medical illness his contract of employment with his employed was frustrated by operation of law and by refusing to consider Prof. AC McFarlane's medical report dated 28 April 1993 and by refusing to determine and or failing to determine the applicant's application for a TPD benefit dated 3 November 2005, therefore, in 1994 and in 2005 ASL/MMASSF had breached its fiduciary relationship with the applicant of potential beneficiary and trustee of a superannuation fund, which the Plaintiff had entered into with the Respondents on or about 17 March 1970, breached the Respondents fiduciary obligation or duty to the Applicant under the Trust Deed and Rules, was in breach of good faith and the Respondents was negligence (sic) in it refusing to perform or in it failing to perform its duty to the applicant in not making a correct and proper of the applicants superannuation benefits in April 1994 and in refusing to make a determination or failing to make a determination on the applicant's application for a TPD benefit dated 3 November 2005, therefore, the applicant claims, inter alia, a declaration that on 16 March 1994 his contract of employment with his employer was frustrated by operation of law, due to his August 1991 pathologically intense anxiety condition and or his psychological or psychiatric illness/injury/mental breakdown and as he has been totally and permanently disabled since 16 March 1994 ASL/MMASSF had a statutory, legal and a fiduciary duty and obligation pay the applicant a Total Permanent Disability benefit in the sum of 5 times the applicant's Superannuation Salary, therefore, the applicant now claims relief for the payment of his TBD (sic) benefit plus compound interest from 16 March 1994 up to the date of the payment of his TPD benefit. The applicant claims that as he was entitled to be paid the sum of $181,195.00 as at 1 July 1991 he is now entitled to be paid the sum of about $280,000.00 on the ground that this sum is made up of his correct 1994 TPD benefit plus compound interest from 16 March 1994 to 3 November 2005 or to be determined by the Honourable Federal Court. 31 The applicant seeks an order that ASL/MMASSF pays to him compensation and punitive damages, to be determined by the Honourable Federal Court, for the unwarranted stress and the anxiety that the ASL/MMASSF has deliberately and consciously placed the applicant under since 16 March 1994, which has contributed to the applicant's high blood pressure, coronary artery disease, heart attack and open heart surgery and to his anxiety disorder and depression, by refusing to pay him his legally entitled TPD benefit. …' 59 The primary judge commenced his reasons for judgment of 5 February 2009 by saying: '1 On two previous occasions I have refused summarily to dismiss Mr Kowalski's application and gave him leave to file and serve an amended application and statement of claim: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 and Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691. On the latter occasion I indicated that I was providing him with his last opportunity to provide an intelligible and unobjectionable pleading. I have, though with little optimism, recommended to him that he obtain competent legal assistance. He has to date demonstrated little understanding both of the law he seeks to invoke in his own favour and of how to present, albeit in lay form, a clear statement of the claim he seeks to prosecute. My recommendation was not accepted. As he has done in so many proceedings in this Court and in other courts and tribunals concerning his relationship with his past employer, Mitsubishi Motors Australia Ltd (MMAL), he acted without legal representation on the motion presently before me. That motion, brought by the two respondents, again seeks the summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or else under O 20 r 5 of the Federal Court Rules. 2 I intend to make a summary order under s 31A giving judgment for the respondents in relation to the whole proceeding.' (Emphasis added) 60 At [26] et seq of his reasons the primary judge set out Mr Kowalski's '1994 claim', at [40] et seq he set out his '1998 claim', notwithstanding that it had not been pleaded, and at [51] et seq he set out details of his '2005 claim'. 61 At [67] et seq the primary judge gave detailed consideration to Mr Kowalski's several claims whether pleaded or not. At [68] he said: '68 Doing the best I can with the underlying material which is said to found the complaints made, and conscious of the opportunities I have given Mr Kowalski to propound a cause of action, albeit in lay terms, I have as I have foreshadowed, concluded that the proceedings should be summarily dismissed. While it will not often be the case that a Court will be required to - or should properly - conduct as detailed an examination of the materials put on by the parties as I have, this is not an ordinary proceeding with an ordinary and uneventful provenance. …' 62 At [71]-[74] the primary judge dealt with Mr Kowalski's 1994 claim. His Honour drew attention to the fact that no formal application had been made at the time of termination of his employment for a Total and Permanent Disablement benefit. His Honour observed at [73] that the 1994 claim proceeded on two false assumptions: the first being that the trustee had, in the circumstances, a duty to consider whether the applicant had an entitlement to a Total and Permanent Disablement benefit. The second was that the trustee was obligated to consider Dr McFarlane's 'report' (as the 29 April 1993 interview notes were misdescribed). His Honour said there was no evidence at all that the trustee was informed of or provided with the report at any time relevant to the determination of Mr Kowalski's 1994 retirement benefit. Furthermore, Mr Kowalski did not contend to the contrary. In consequence his Honour found that Mr Kowalski's 1994 claim had no reasonable prospects of success as formulated or at all, irrespective of whether the trustee would otherwise have had a defence to it. 63 In relation to Mr Kowalski's 1998 claim the primary judge said at [78]: '78 No precise "claim" has been articulated in respect of the Trustee's supposed wrongdoing in 1998. I do not intend to speculate further on that matter. I can discern no potential basis, let alone one having reasonable prospects, for a claim for breach of trust against the Trustee for its decisions etc in late 1998.' 64 At [81]-[87] the primary judge dealt with Mr Kowalski's 3 November 2005 application for a Total and Permanent Disablement benefit. At [84] the primary judge found that the 2005 claim had no reasonable prospects of success. At [85] he said: '85 … I am left to consider if it can properly be alleged that there was not a real and genuine consideration of the correct question by the Trustee. There is nothing before me reasonably to suggest such was the case and hence should be examined at trial.' 65 At [87]-[88] the primary judge said: '87 I am satisfied there is no basis in the material relied upon by Mr Kowalski that reasonably suggests a breach of trust or of fiduciary duty such as has been alleged in the [Further Amended Statement of Claim] in relation to the 3 November 2005 claim. The pleaded assertion that the Trustee had deliberately and consciously acted in bad faith lacks any foundation and should never have been made. 88 As I am satisfied that none of the actual or potential breach of trust or, relatedly, breach of fiduciary duty, claims have reasonable prospects of success, not only will I dismiss them, I will also dismiss the negligence claim which is premised upon the conduct said to give rise to the breaches of trust and of fiduciary duty.' 66 His Honour then proceeded to conclude at [89]: '89 As I am satisfied that the claims actually made in the [Further Amended Statement of Claim] as well such claims as may be said to be immanent in the material informing the proceeding have no reasonable prospects of success, I will order under s 31A of the Federal Court of Australia Act that the application be dismissed.' 67 His Honour proceeded in his reasons for judgment to, in effect, view the matter on a belt and braces basis by addressing potential defences which had apparently been foreshadowed in argument by the respondents and which his Honour considered provided a further basis for concluding that Mr Kowalski's Further Amended Application had no reasonable prospects of success. 68 On 26 October 1998 Mr Kowalski and Mitsubishi Motors Australia Limited participated in a mediation before a Mr Walsh QC. The first respondent, which was a subsidiary of Mitsubishi Motors Australia Limited, was not a participant in the mediation. The mediation resulted in the signing of a Heads of Agreement on the following day, i.e. 27 October 1998. The Heads of Agreement were signed by Mr Kowalski, his wife and Mitsubishi Motors Australia Limited. 69 At [90]-[91], his Honour said: '90 While this matter has been heard before the respondents put on a defence, they have foreshadowed that if they had been required to do so they would have raised the mediation agreement as a complete defence to the claim made. 91 The basis of this defence, as I understand it, is that when considered in its context, it is clear that, while the Trustee was not a party to the agreement, it was nonetheless the beneficiary of the promises made by Mr Kowalski that (i) the sum of $64,691.43 "to be paid from the Superannuation Fund" was payment in full and final settlement of any superannuation payable by the Trustee; and (ii) that Mr Kowalski would not institute any legal proceedings in respect of the matter in (i) above.' 70 The primary judge's observation, at [96], that the foreshadowed defence provided a further basis for concluding that Mr Kowalski's Further Amended Application had no reasonable prospects of success was not strictly necessary and need not be considered on the hearing of the present application, given his Honour's conclusions on Mr Kowalski's claims at [89] of his reasons. 71 The decision of the High Court in Aon Risk Services makes it clear that a further opportunity should not be afforded to Mr Kowalski to 'clarify and amend his pleading'. He had been afforded his 'last opportunity to provide an intelligible and unobjectionable pleading.' The interests of justice would not be served by prolonging the matter any further. 72 Mr Kowalski submitted that it was not open to the primary judge to give judgment for the respondents in relation to the whole of the proceeding in the absence of a defence. We disagree. The power conferred on the Court by s 31A(2) of the Federal Court Act to summarily dismiss a proceeding is not predicated upon the existence of a defence. Once a respondent has appeared, an application for summary dismissal may be brought. In Jefferson Ford Gordon J stated a number of principles which her Honour considered were applicable to applications for relief under s 31A of the Federal Court Act. At [126] her Honour said: '126 Secondly, assessment of whether a proceeding … has no reasonable prospects of success will necessarily require: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. The method by which such a claim … will be assessed will vary depending on the nature of the cause of action, the identity of the parties, the pleaded facts and the evidence, if any, tendered.' 73 In our opinion there will, as would appear to have been acknowledged by her Honour in the last sentence quoted above, be cases where it is unnecessary to identify any defence that may have been pleaded or may be available to a respondent before one can conclude that an applicant has no reasonable prospect of successfully prosecuting his proceeding. 74 It may be observed that in General Steel Industries Barwick CJ ordered that the whole of the plaintiff's statement of claim be struck out and further ordered that the plaintiff's action be dismissed with costs in circumstances where the defendants had applied to have the proceedings summarily dismissed after they were served with the writ and statement of claim and before the filing of any defence. See also the observations of Lindgren J in White Industries at [30] above. 75 Another submission advanced by Mr Kowalski was to the effect that the respondents could not be heard to say that he didn't have a cause of action against them given the observation of the primary judge in his reasons for judgment in Kowalski No 2 at [1] where he said: '… while the pleading is misguided in its thrust, it cannot be said that the underlying complaint that appears to inform it may not suggest a reasonable cause of action. In their submissions the respondents, while not admitting this to be the case, have come close to identifying that cause of action, though without conceding that it reasonably arguable or that they do not have a good defence to it.' (see [13] above) 76 In our opinion the observations of the primary judge in respect of the Amended Statement of Claim do not give rise to any estoppels which would preclude the respondents from seeking summary dismissal of the claims contained in the Further Amended Application and Further Amended Statement of Claim. No matters cardinal to the respondents' claims or contentions in its notice of motion filed 6 June 2008 involve an assertion that any part of the decision of the primary judge in Kowalski No 2 was erroneous. 77 Mr Kowalski submitted that the primary judge was bound by findings made by Von Doussa J in Kowalski v Mitsubishi Motors Australia Limited [1998] 88 FCR 55. That case addressed the jurisdiction of the Court to entertain an application under s 170EA of the Workplace Relations Act 1996 (Cth) after the section had been repealed. Mr Kowalski submitted that matters recorded by Von Doussa J as facts to which he had deposed in affidavits filed by him should be treated as facts which his Honour found. This submission is quite without substance and should be rejected. Von Doussa J held that the jurisdiction of the Court which Mr Kowalski sought to invoke by his application issued on 18 December 1997 had been abolished with effect from 31 December 1996 subject to certain exceptions which had no application. Accordingly his Honour ordered that the application be dismissed. Nothing that was said by Von Doussa J, or left unsaid by his Honour, has any bearing on the claims made by Mr Kowalski in the Further Amended Application which were summarily dismissed under s 31A of the Federal Court Act. 78 A bold and unwarranted submission was put by Mr Kowalski that he was denied the opportunity to cross-examine David Allan Smelt who swore an affidavit on 30 July 2008, which was filed by the respondents on 30 July 2008 in support of their case for relief under their notice of motion filed 6 June 2008. Mr Kowalski said: 'I wasn't allowed to cross-examine them on their affidavits.' When invited to direct the Court's attention to any part of the transcript where it was recorded that he sought to cross-examine Mr Smelt, Mr Kowalski was unable to do so. The best he could do was to say that 'they' wouldn't give him all the transcripts to put in the appeal books. When directly asked whether he was saying that he asked for leave to cross-examine Mr Smelt, which leave was refused, Mr Kowalski said no more than 'I might have'. 79 In the absence of any material before the Court to support the suggestion that Mr Kowalski 'might have' sought leave to cross-examine Mr Smelt, the submission should be rejected out of hand.

Conclusion 80 None of the matters raised in the proposed grounds of appeal 4.1, 4.2 and 4.3 of the 'Notice of Appeal' filed 6 February 2009 suggests that the decision of the primary judge was erroneous. None of the other matters the subject of Mr Kowalski's oral submissions leads to a different conclusion. 81 In our opinion the decision of the primary judge to order summary dismissal was not attended with sufficient doubt to warrant its reconsideration by a Full Court. A grant of leave to appeal would be futile. 82 In the circumstances Mr Kowalski's application for leave to appeal should be dismissed. His purported appeal should also be dismissed as incompetent. In addition, he should be ordered to pay the respondents' costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Graham and Gilmour.

The Applicant appeared in person. Counsel for the First and Second Respondents: V M Heath

Solicitor for the First and Second Respondents: Thomson Playford Cutlers