Soden v Kowalski

Soden v Kowalski - [2011] FCA 318 - FCA 2011 case summary — Zoe

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INTRODUCTION 1 These reasons relate to two proceedings in which the applicants are, respectively, Warwick Soden, in his capacity as Registrar of the Federal Court of Australia, (SAD 75 of 2010) and Mitsubishi Motors Australia Ltd, MMAL Staff Superannuation Fund Pty Ltd and AMP Superannuation Ltd (SAD 96 of 2010). AMP Superannuation Ltd is the successor trustee to the MMAL Staff Superannuation Fund. The respondent in each proceeding is Kazimir Kowalski. The applicants seek a declaration pursuant to ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) and O 21 r 1 and O 35 r 1 of the Federal Court Rules that the respondent has "habitually, persistently and without reasonable grounds instituted vexatious proceedings in the Court". They also seek consequential orders including that the respondent "may not institute any further proceedings without leave of the Court" and other related relief. 2 On 8 July 2010 the Court ordered that the two proceedings be heard concurrently and that evidence in one, be evidence in the other. Although the applicants in each proceeding made separate oral and written submissions, to the extent relevant, they have adopted each other's submissions. Reference to the applicants should therefore be understood as a reference to the applicants in both proceedings unless otherwise indicated. For convenience the following is a list of the most common acronyms and abbreviations used in these reasons: Mitsubishi Motors Australia Ltd MMAL or Mitsubishi MMAL Staff Superannuation Fund Pty Ltd; or MMAL Super Mitsubishi Motors Australia Limited Staff Superannuation Fund Limited AMP Superannuation Limited AMP Super Mitsubishi Motors Staff Superannuation Fund Superannuation Fund MMAL, AMP Super and MMAL Super, together Mitsubishi parties Administrative Appeals Tribunal AAT Administrative Appeals Act 1975 (Cth) AAT Act Federal Court of Australia Act 1976 (Cth) Federal Court Act

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Vexatious litigant declaration in Supreme Court of South Australia - 19 April 2005 9 The numerous proceedings brought by the respondent led Mitsubishi to seek a declaration in the Supreme Court of South Australia that the respondent was a vexatious litigant. On 19 April 2005 Bleby J made a declaration in those terms and ordered that Mr Kowalski be prohibited from instituting further proceedings against Mitsubishi or a related entity in the State Courts of South Australia without the leave of the Supreme Court; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. 10 Most of the proceedings said to be vexatious in the proceeding before Bleby J were proceedings instituted by the plaintiff in the Workers Compensation Tribunal, which is constituted under the Workers Rehabilitation and Compensation Act 1986 (SA). A preliminary question was whether the Tribunal was a court for the purpose of Mitsubishi's application. The question was answered in the affirmative in Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302. 11 The application before Bleby J was made under s 39 of the Supreme Court Act 1935 (SA) which provides for declaration such as Mitsubishi sought in the case of the institution of vexatious proceedings. Section 39(5) of that Act provides that proceedings are vexatious: (a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or (b) if instituted without reasonable ground. 12 His Honour considered 45 decisions that had been referred to by Mitsubishi in support of its application to have Mr Kowalski declared a vexatious litigant. Of those proceedings, the plaintiff had submitted that 29 were vexatious. In relation to those 29, his Honour found that 24 (one of which involved ten separate proceedings, all disposed of in one decision) were vexatious, four were not vexatious and one was not a proceeding but an application made in the course of a proceeding. With respect to that application, however, his Honour observed, at [232], that it nevertheless illustrated, "the continued attempts by the defendant to thwart the legitimate process of the Court". 13 His Honour also referred to multiple proceedings that had been brought between 1998 and 2005 in courts and tribunals to which s 39 did not apply. They included proceedings commenced in the Australian Industrial Relations Commission, the Federal Court and the Legal Practitioners' Disciplinary Tribunal. His Honour commented that the plaintiff had brought those proceedings to the attention of the Court "in order to demonstrate the full extent of the defendant's seemingly endless pursuit of litigation against the plaintiff and those connected with the plaintiff". In response to Mr Kowalski's objection to the irrelevance of these matters, his Honour further observed, at [265]: It is important to consider the respective positions of the parties in the broad context of all of the litigation that has occurred. … However, the weight which can be given to the institution of such proceedings, and to the outcomes and findings therein, is necessarily much less than the weight which I have placed on the decision outlined above. They are relevant only to the extent that they form part of the background and history of the disputes between the parties, which background and history might, in a particular case, have some bearing on whether one or more of the proceedings the subject of s 39 were instituted vexatiously. 14 In considering whether it could be said that Mr Kowalski had instituted vexatious proceedings persistently, Bleby J accepted the views expressed by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 and by the New Zealand Court of Appeal in Brogden v Attorney-General [2001] NZAR 809; see below at [48]. His Honour observed that the majority of the proceedings that he had found to be vexatious were instituted in the period beginning about one year after the parties had entered into the Heads of Agreement and "sought, in one way or another, to undo it". His Honour continued at [278] of his reasons: However, the defendant has also continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many occasions, being grounds on which he has also resisted the making of an order in these proceedings. The defendant has demonstrated his unwillingness or inability to accept these decisions on his claims for compensation which have been conclusively and repeatedly determined against him. I have no hesitation in deciding that the proceedings which have been identified as being vexatious have been instituted persistently and that the plaintiff is entitled to the orders it seeks.

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Evidence of Ms Bochner 18 Ms Bochner states that she was authorised to swear her affidavits by the Registrar of the Federal Court, Mr Warwick Soden, the applicant in proceeding SAD 75 of 2010. In her first affidavit sworn on 1 June 2010, Ms Bochner provided from her inspection of the Court's records, "a chronological summary" of "proceedings" instituted by Mr Kowalski as at that date. She lists 31 such proceedings starting with an application against Mitsubishi filed on 18 December 1997 in SG 100 of 1997 and ending with a notice of appeal filed in SAD 56 of 2010 filed on 7 May 2010. The proceedings to which Ms Bochner refers include applications by way of notices of motion, other interlocutory applications and appeals. 19 Ms Bochner also provided "a chronological summary of the corresponding Federal Court decisions in relation to proceedings instituted by the Respondent". She lists 33 decisions in respect of which written reasons were given. I have added another decision (number 34) that was relied upon by the applicants and discussed in their submissions although not listed in Ms Bochner's affidavit. The citations for those decisions and other relevant details are as follows: 1. Kowalski v Mitsubishi Motors Australia Ltd (1998) FCR 55, SG 100 of 1997, 16 October 1998; 2. Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153, SAD 190 of 2001, 17 September 2002; 3. Kowalski v Trustee of Mitsubishi Motors Australia Limited Staff Superannuation Fund Pty Ltd [2003] FCA 14, SAD 234 of 2002, 15 January 2003; 4. Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Fund Pty Ltd [2003] FCAFC 18, SAD 234 of 2002, 28 February 2003; 5. Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069, (2000) 242 ALR 370 SAD 11 of 2007, 24 July 2007; 6. Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691, SAD 11 of 2007, 20 May 2008; 7. Kowalski v Mitsubishi Motors Australia Ltd [2008] FCA 1873, SAD 171 of 2008, 4 December 2008; 8. Kowalski v Repatriation Commission [2008] FCA 1970, SAD 168 of 2008, 22 December 2008; 9. Kowalski v Repatriation Commission [2009] FCA 47, SAD 216 of 2008, 30 January 2009; 10. Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 48, SAD 205 of 2008, 3 February 2009; 11. Kowalski v Repatriation Commission [2009] FCA 153, SAD 3 of 2009, 27 February 2009; 12. Kowalski v Repatriation Commission [2009] FCA 794, SAD 168 of 2008, 30 July 2009; 13. Kowalski v Repatriation Commission [2009] FCAFC 107, (2009) 259 ALR 444; SAD 26 of 2009, 14 August 2009; 14. Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991, SAD 171 of 2008, 3 September 2009; 15. Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117, (2009) 259 ALR 319; SAD 20 of 2009, 9 September 2009; 16. Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044, SAD 75 of 2009, 17 September 2009; 17. Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1072, SAD 81 of 2009, 23 September 2009; 18. Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289, SAD 133 of 2009, 9 November 2009; 19. Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1420, SAD 165 of 2009, 2 December 2009; 20. Kowalski v Superannuation Complaints Tribunal [2009] FCA 1466, SAD 159 of 2009, 9 December 2009; 21. Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 5, SAD 160 of 2009, 15 January 2010; 22. Kowalski v Superannuation Complaints Tribunal [2010] FCA 104, SAD 1929 of 2009, 19 February 2010; 23. Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10, (2010) 114 ALD 8; SAD 15 of 2009, 22 February 2010; 24. Kowalski v Repatriation Commission [2010] FCAFC 19, SAD 112 of 2009, 5 March 2010; 25. Kowalski v Complete Exhaust Specialists [2010] FCA 222, SAD 13 of 2010, 16 March 2010; 26. Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 265, SAD 203 of 2009, 16 March 2010; 27. Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408, SAD 75 of 2009, 30 April 2010; 28. Kowalski v Repatriation Commission [2010] FCA 409, SAD 176 of 2009, 30 April 2010; 29. Kowalski v Cole, Sim and RJ Cole Partners [2010] FCA 410, SAD 1 of 2010, 30 April 2010; 30. Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 411, SAD 34 of 2010, 30 April 2010; 31. Kowalski v Complete Exhaust Specialists [2010] FCA 412, SAD 35 of 2010, 30 April 2010; 32. Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413, (2010) 185 FCR 42; SAD 203 of 2009, 30 April 2010; 33. Kowalski v Superannuation Complaints Tribunal [2010] FCA 473, SAD 159 of 2009, 14 May 2010. 34. Kowalski v AMP Superannuation Limited [2010] FCA 1170, SAD 29 of 2010, 4 November 2010.

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Power to make orders concerning vexatious litigants 30 The Federal Court is not a court of unlimited jurisdiction. As French J (as the Chief Justice then was) commented in IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231 at [43], its jurisdiction "is entirely statutory and is conferred in relation to 'matters' whose content derives from the statute conferring the jurisdiction". In matters in which it has jurisdiction the Federal Court has power to make such orders as it regards as appropriate and to make declarations of right in matters in which it has jurisdiction; Federal Court Act s 23 and s 21 respectively. In addition s 59(1) provides that: The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court … and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. 31 Section 59(2)(l) provides that, 'in particular' the Court may make provision in the rules for "the prevention or termination of vexatious proceedings". Thus the statute extends the Court's rule making power beyond current proceedings to the restraint of future proceedings: see Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 315 per Barwick CJ and McTiernan J. The validity of a rule providing for orders restricting the right of a litigant to commence or continue proceedings in the court was discussed by Toohey J in Jones v Skyring (1992) 109 ALR 303 at 312 and by Sackville J in Ramsey v Skyring (1999) 164 ALR 378 at [12]. 32 The power is, however, limited to proceedings brought or likely to be brought in the Federal Court of Australia. It does not, for instance, extend to the prevention or termination of vexatious proceedings in the Federal Magistrates Court. In this respect it must be distinguished from s 39 of the Supreme Court Act 1935 (SA) pursuant to which Bleby J declared Mr Kowalski a vexatious litigant. That section gave the Supreme Court power to make vexatious litigant declarations that extended to other State courts. 33 Pursuant to s 59(2)(l), the Federal Court Rules specifically provide for the control of vexatious proceedings. The applicant in SAD 75 of 2010, relies on O 21 r 1 which gives a general power to the Court to restrain a vexatious litigant on the application of a any one of a number of persons including the Registrar of the Court. It provides: Vexatious litigant (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or in any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. (2) An order under this rule may be made: … (e) on the application of the Registrar. 34 The Mitsubishi parties rely on O 21 r 2. This rule allows a person against whom the vexatious litigant has brought a vexatious proceeding, to apply to the Court for relief. It states: Vexatious proceeding against a person Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court. 35 The relief for which these rules provide is extreme. It deprives the person subject to the order of a right that is fundamental to the preservation of a civil society governed by the rule of law, namely the right to call on the Court to resolve a dispute or adjudicate a claim simply by filing an application in the prescribed form. For this reason such an order is not made lightly: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2007] FCA 1069 at [44]; Ramsey v Skyring (1999) 164 ALR 378 at [51]. 36 There is, however, a countervailing consideration which is to be found in the purpose of the rules. In Jones v Skyring (1992) 109 ALR 303 at 312, Toohey J referred to the purpose of such a rule as, reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance. In Ramsey v Skyring (1999) 164 ALR 378 at [52], Sackville J referred to Toohey J's comment and added, Linked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings.

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Instituting a proceeding 39 At the hearing Mr Kowalski repeatedly challenged the relevance of some of the matters on which the applicants relied on the basis that they did not involve the institution of a proceeding. The substance of these repeated challenges was Mr Kowalski's submission that where there had been summary dismissal of his claims there had not been a proceeding. Section 4 of the Federal Court Act defines 'proceeding' as follows: Proceeding means a proceeding in a court, whether between parties or not and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal. 40 Mr Kowalski also takes issue with the applicants' reliance on 'proceedings' which were the subject of interlocutory applications or interlocutory decisions. He submits that these are not proceedings within the meaning of the relevant statutory provisions and rules. This submission ignores the reference in the above definition to an incidental proceeding "in the course of" a proceeding. In my view under this definition the filing of an interlocutory application in the Federal Court institutes a proceeding. In any event, judicial authority in Australia supports that conclusion. 41 The issue was the subject of consideration in Re Vernazza [1960] 1 QB 197 at 208 where it was submitted that nothing other than the commencement of an action by a writ or other proper procedure could be regarded as the institution of a proceeding. This submission was rejected by Ormerod LJ who, at 209, also rejected the opposing submission that it was "a step taken which, if successful, would set in train the machinery of the court with the effect that the court would grant relief or compel the other party to take a procedural step". His Lordship included in the concept of instituting a proceeding, an appeal to the Court of Appeal from the High Court or any other court. Although His Lordship considered other possibilities such as petitions to the House of Lords for leave to appeal it was not necessary to express a concluded view on those possibilities. 42 In Jones v Skyring (1992) 109 ALR 303, Toohey J held that the issuing of summons, applications and notices of motion and notices of appeal all constituted the institution of legal proceedings; see p 310-311. His Honour considered whether an application to a justice of the High Court for leave to bring proceedings in that Court was the institution of proceedings without finding it necessary to decide the matter. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 Yeldham J said: Section 84 of the Supreme Court Act, 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form. 43 In Horvarth v Commonwealth of Australia [1999] FCA 504 at [105], Weinberg J said that he had treated each application brought by Mr and Mrs Horvarth for leave to file a document rejected by the registrar under O 46 r 7A as the institution of a legal proceeding. A comment to similar effect was made by Sackville J in Ramsey v Skyring (1999) 164 ALR 378 at 391 although his Honour also noted that "the presentation by the respondent of documents to the registry but which were not accepted, cannot be regarded as proceedings instituted by him". 44 As is often the case in proceedings such as this I have not found it necessary to determine the outer limits of the meaning of "proceedings". In particular, I have not found it necessary to determine if an application for leave to appeal to the High Court is a proceeding. Although Mr Kowalski made numerous (unsuccessful) applications for leave to appeal to the High Court, I have relied on those applications only for context and have not treated them as involving the institution of a proceeding. I am, however, satisfied that interlocutory applications fall within the definition of "proceeding" in s 4 of the Federal Court Act and, in any event, they were accepted as involving the institution of proceedings by Toohey J in Jones v Skyring. Similarly, I find no support for Mr Kowalski's submission that where there had been summary dismissal of his claims there had not been a proceeding. I reject that submission.

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Vexatious proceedings 45 The wording of rules 2 and 3 of O 21 suggest that a "vexatious proceeding" has some quality beyond being brought "habitually, persistently and without reasonable grounds". In Jones v Skyring (1992) 109 ALR 303 at 309, Toohey J commented that whatever that quality is, the test for a vexatious proceeding is not simply subjective nor is it whether the proceeding has been instituted vexatiously, maliciously or in bad faith. Similarly it is not to the point that the litigant genuinely believes in the merit of the claim or claims being pursued; see also Re Vernazza [1960] 1 QB 197 at 208. 46 In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J gave detailed consideration to the authorities and to the questions of law relevant to a declaration that a person is a vexatious litigant. His Honour's analysis was in the context of s 84 of the Supreme Court Act 1970 (NSW) however, in relation to the nature of vexatious proceedings, s 84 is not materially different to The Federal Court Rules under consideration here. On that point, his Honour observed, at 491: It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 4. In order to fall within the terms of s 84: (a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement); (b) the proceedings must have been "habitually and persistently" instituted by the litigant. 47 Although the respondent must have "instituted" vexatious proceedings, as Roden J pointed out, vexatiousness is a quality of the proceedings rather than the respondent's intention so that "the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious"; Re Vernazza [1960] 1 QB 197 at 208 per Ormerod LJ. The intention to harass, embarrass or annoy may be a factor, even the precipitating factor, in an applicant's decision to institute a proceeding and yet that proceeding may involve a legitimate claim. Nevertheless such an intention may be a powerful indicator that a proceeding is vexatious because groundless, but it cannot be determinative. In Attorney-General v Collier [2001] NZAR 137 at [40] the Full Court made this point saying: Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points (such as Limitation Act defences or error in the form of proceedings not known to the plaintiff) may be reliable evidence in the circumstances of vexatiousness. 48 This is consistent with the observations of Toohey J in Jones v Skyring: see [45] above. In Brogden v Attorney-General [2001] NZAR 809 at [22] the New Zealand Court of Appeal made similar observation and observed that ultimately the test is whether "the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet". 49 The concept of a vexatious proceeding is relevant to an application to dismiss a single proceeding pursuant to O 20 r 4 or r 5 which provide that the Court may stay or dismiss generally a proceeding or claim that is "frivolous or vexatious". I see no reason why "vexatious" in these rules should bear a different meaning to the meaning it bears O 21 r 1 and r 2. For practical purposes, the test of whether a proceeding is vexatious is whether it is, in Roden J's words, "so obviously untenable or manifestly groundless as to be utterly hopeless". 50 In Gallo v The Honourable the Attorney-General, Supreme Court of Victoria, 4 September 1984, (unreported) Starke J referring, at 11, to 'vexatious' as "an omnibus expression", said that the expression includes, ... proceedings which are scandalous which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word 'vexatious' in the statute. 51 In Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28], Ashley J helpfully addressed practical issues of application: It is one thing to know what the word "vexatious" means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results. [Footnotes omitted; emphasis added] 52 As to what constitutes lack of reasonable grounds, the possibilities are endless. One point is clear and particularly relevant in the current proceeding and that is, where issues have previously been determined, the institution of proceedings with respect to them generally indicates a lack of reasonable grounds: see Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 at [31] per Kiefel J and Granich & Associates v Yap [2004] FCA 1567 at [9] per French J. 53 None of this is to say that the mode of proceeding under O 20 should not be different than under O 21. In the case of a single proceeding it is necessary to consider if the absence of reasonable grounds arises, for instance, from a defect in pleading that might be cured. In the absence of a cure the proceeding remains vexatious and an application to dismiss it under O 20 should be given serious consideration.

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Habitually and persistently and without reasonable grounds 54 It is important not to confuse the question whether a proceeding is vexatious with whether a particular litigant has habitually and persistently instituted such proceedings. Such confusion is invited by rules 1 and 2 of O 21 which require that the vexatious proceedings must have been instituted not only habitually and persistently but also without reasonable grounds. In my opinion being "without reasonable grounds" is essential for a proceeding to be vexatious. Consequently the express requirement that the proceedings have been instituted without reasonable grounds adds little, other than emphasis, to the requirement that only 'vexatious' proceedings are to be considered in determining if the institution of proceedings has been habitual and persistent. To maintain otherwise would be to contemplate that there could be reasonable grounds for instituting a vexatious proceeding. 55 In Ramsey v Skyring (1999) 164 ALR 378 at [55] Sackville J addressed the meaning of "habitually and persistently": It has been said that the expression "habitually and persistently" implies more than "frequently" (the latter being the word used, for example, in High Court Rules, O 63, r 6(1) and in s 3 of the Vexatious Litigants Act 1981 (Qld)). In Attorney-General v Wentworth, Roden J (at 492) said this of the same expression, used in s 84(1) of the Supreme Court Act 1970 (NSW): 'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; 'persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness. Although Roden J eschewed any attempt to formulate a definition of universal application, his test has been cited with approval: Valassis v South Sydney City Council (1996) 92 LGERA 275, at 280; Attorney-General (Vic) v Lindsey (unreported, 16 July 1998, SC (Vic), Kellam J), at 9. I am content to proceed on the basis that Roden J's observations are correct. 56 In Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 Kiefel J also accepted Roden J's test and added, at [42] that it was not necessary for "proceedings to have been brought frequently and over a long period of time before an order may be made". In her Honour's view whether proceedings have been brought habitually and persistently "is one of fact, to be determined by reference to the circumstances of the case". 57 A similar view was expressed in Brogden v Attorney-General [2001] NZAR 809 at [21] where the New Zealand Court of Appeal brought out clearly the distinction between "habitually" and "persistently" to which Roden J referred: 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. 58 From the discussion below it can be seen that the conduct described by the Court of Appeal has been a consistent feature of Mr Kowalski's conduct in many of the proceedings instituted by him.

[32]

SAD 190 of 2001 - application for compensation and damages 63 By an application dated 22 November 2001 (SAD 190 of 2001), Mr Kowalski sought compensation and punitive damages arising out of Mitsubishi's termination of his employment. He claimed that his employment terminated on 27 October 1998 when he was constructively dismissed rather than by frustration of the contract on 16 March 1994. In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2002] FCA 1153, delivered on 17 September 2002, Mansfield J dismissed the application and ordered Mr Kowalski to pay costs. His Honour found, at [44], that Mr Kowalski was estopped from asserting that his employment with Mitsubishi had ceased other than on 16 March 1994 "by his conduct in entering into, and leading up to, the mediation agreement dated 26 October 1998 and by the terms of the Heads of Agreement". Mansfield J declined to go behind the Heads of Agreement saying, at [47], that "no evidence was adduced which could go the smallest distance towards establishing a ground upon which [the agreement] might be set aside". 64 At [19] of his reasons Mansfield J also referred to proceedings that Mr Kowalski had commenced on 23 November 1999 in the Australian Industrial Relations Commission in which he had also unsuccessfully complained that the Heads of Agreement was not negotiated in good faith. This was not the only challenge to the Heads of Agreement made prior to the proceeding in the Federal Court. 65 On 23 November 1999 Mr Kowalski filed an application in the South Australian Workers Compensation Tribunal alleging fraud, misrepresentation and unconscionable conduct by Mitsubishi and seeking to set aside the consent orders made pursuant to the Heads of Agreement and to go behind the Agreement. In his reasons for judgment delivered on 14 August 2001, Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93, Deputy President McCouaig referred to the fact that Mr Kowalski wanted to have parts only of the Agreement set aside. In particular he did not seek to have the clauses providing for payment to him set aside. The Deputy President rejected the allegations made by Mr Kowalski. His Honour commented that "inconsistency and pedantry" were common features of Mr Kowalski's evidence, adding, at [73]: My strong impression is that in his attempt to portray Mitsubishi in the worst possible light, [Mr Kowalski] too readily and too often allowed himself to fall prey to opportunism and prevarication. In the net result, I did not find him a reliable witness. 66 In a subsequent judgment the Deputy President found that Mr Kowalski had acted unreasonably, frivolously and, at times, vexatiously within s 95(3) of the Workers Rehabilitation and Compensation Act 1986 (SA); Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 102. His Honour referred to Mr Kowalski's claims as "patently untenable", "uniformly without merit" and "hopeless and unmeritorious … from the outset, based on spurious grounds". In ordering Mr Kowalski to pay Mitsubishi's costs his Honour observed at [29]: Parliament's intention in enacting s 95(3) was to inhibit the very unmeritorious time consuming and expensive litigation that has taken place in this instance. On any scale of unreasonableness this must rank at or near the top. Mr Kowalski unsuccessfully appealed from both decisions of Deputy President McCouaig. 67 The applicants contend that this proceeding was vexatious. I agree with this submission. In the light of the Heads of Agreement the claim was hopeless. Furthermore, given the proceedings in the South Australian Workers Compensation Tribunal, Mr Kowalski must have been aware that there was no reasonable basis to his challenge to the Heads of Agreement.

[34]

SAD 234 of 2002 - appeal from decision in SAD 190 of 2001 69 The Full Court dismissed the appeal from Mansfield J's decision on 28 February 2003: Kowalski v Trustee Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18. The Full Court's comments in dismissing the appeal echoed comments that had been made at first instance. The Full Court noted, at [10], that one interesting feature of Mr Kowalski's argument was that he did not attack the validity of the Heads of Agreement: He accepts that it is binding. He does not repudiate it. He has no intention of repaying the money paid to him under it. He merely says that the agreement cannot keep him from his entitlement to receive the moneys that are lawfully his, if those moneys exceed the amount payable under the agreement. From what one could understand, the appellant was asking the Court to calculate whether more was due to him by way of award and other statutory entitlements and under the Superannuation Deed than he had received pursuant to the Heads of Agreement and then to order that the excess (if any) together with such further sums as was sought should be paid to the appellant. 70 The Full Court, at [19], agreed with Mansfield J that any rights that Mr Kowalski may have had arising out of the termination of his employment merged into the rights he acquired under the Heads of Agreement and that his rights against his former employer did not go beyond those reflected in the Heads of Agreement. In conclusion the Full Court said at [30]: For the reasons given above, it is unnecessary for us to agree with all aspects of His Honour's reasoning. However, in relation to the Employer we agree with Mansfield J that the executed Heads of Agreement provide a complete defence. In the absence of any disclosed basis for challenging that agreement the appellant has no prospects of success in his action and Mansfield J was correct to dismiss it. In relation to the Superannuation Trustee we agree that there is no jurisdiction to hear that claim and it should be struck out. Mansfield J was correct to make orders under Order 20 Rule 2 of the Federal Court Rules dismissing the action. The appeal should be dismissed. 71 For reasons given in relation to proceeding SAD 190 of 2001, the appeal was vexatious. There were no reasonable grounds for the application or the appeal. As the Full Court said, the Heads of Agreement was a complete answer to Mr Kowalski's claim and thus to his appeal.

[35]

SAD 11 of 2007 - application for compensation and damages 72 In this proceeding Mr Kowalski sought an order that the Superannuation Fund pay him compensation and punitive damages on the basis that it had failed to consider relevant medical evidence in assessing his benefits. He also pleaded a contravention of the Trade Practices Act 1974 (Cth). The respondents, Mitsubishi and AMP Super, sought orders dismissing his claim on the basis that it was beyond the jurisdiction of the Court and also on the ground that the claim was frivolous, vexatious or an abuse of process. They also claimed that Mr Kowalski was a vexatious litigant and, in the alternative, sought security for costs. 73 Justice Finn outlined the history of Mr Kowalski's dispute with Mitsubishi and AMP Super including in the South Australian State Courts and, in particular, the orders made in the South Australian Supreme Court declaring him to be a vexatious litigant. In a judgment delivered on 24 July 2007, his Honour ordered that the proceeding be dismissed in so far as it claimed relief under the Trade Practices Act on the basis that the claim was unarguable and had no reasonable prospects of success; Kowalski v MMAL Staff Superannuation Fund Pty Ltd ACN 064 829 616 [2007] FCA 1069, (2007) 242 ALR 370. Nevertheless Finn J found, at [32], that, however misconceived, Mr Kowalski "properly and genuinely believed" that the Trade Practices Act applied. His Honour otherwise dismissed the respondent's notice of motion and gave leave to Mr Kowalski to file and serve an amended application and statement of claim. 74 In dismissing the application to have Mr Kowalski and the proceeding declared vexatious his Honour stressed the point (with respect entirely properly) that such an order "will not lightly be made because of its serious impact on the right of access to the courts of this country". His Honour said, at [45]-[47]: The present matter is not one in which an order ought be made under either rule. Considering first O 21 r 2, the present is only the second proceeding instituted in this Court against MMA Super by Mr Kowalski, the other being the 2002 Kowalski proceeding. That proceeding was dismissed on jurisdictional grounds against MMA Super without a final determination of the merits of Mr Kowalski's claim. In the present matter, it is conceded that the trust claims do not involve the re-visiting of claims previously decided adversely to Mr Kowalski. While criticism has been directed at the pleading of those claims, it has not been argued that they disclose no reasonable cause of action, though vague and undeveloped allusions have been made to such matters as limitation of action, etc. … Having regard to Mr Kowalski's proceedings in this Court - and it is their character in this Court that is to be objectively judged: Commonwealth Bank of Australia v Heinrich [2003] FCA 540; (albeit regard may properly be had to proceedings in other courts for the light they might throw on that question of characterisation) - it is impossible to conclude that he has habitually, persistently and without any reasonable ground instituted a vexatious proceeding against MMA Super in this Court. In relation to O 21 r 1, I am not satisfied that the first condition required to be made out - i.e. Mr Kowalski has instituted a vexatious proceeding in this court - is satisfied. I will not repeat what I have said above about the proceeding. 75 At the hearing of the present applications of the Registrar and the Mitsubishi parties, Mr Kowalski frequently referred to Finn J's refusal to declare him a vexatious litigant and submitted that, by way of estoppel, his Honour's decision on the point had settled the matter for all time. This submission must be rejected. Finn J's decision was made on the facts as they were at that time. Moreover, his Honour's decision was made at an early stage of the proceeding at which time, as his Honour pointed out, it was not being submitted that the trust claims disclosed no cause of action. 76 It should be noted that subsequently, Finn J struck out the amended statement of claim on the basis that it did not disclose a reasonable cause of action; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (No 2) [2008] FCA 691. Referring to the motion filed by the respondents, Finn J declined to order summary dismissal of the proceedings pursuant to s 31A of the Federal Court Act. His Honour observed, at [1], 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". His Honour, at [19] also pointed to the fact that Mr Kowalski was unrepresented and "cannot be expected fully to understand the mysteries of the law of trusts". In the circumstances Finn J held that "it is proper for the court to endeavour within appropriate limits to ascertain the right that confusedly such a litigant could well be seeking to assert". For that reason his Honour gave Mr Kowalski "one last opportunity" to file and serve a further amended application and statement of claim". 77 It appears that the "one last opportunity" was to no avail. In Kowalski v MMAL Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (No 3) [2009] FCA 53 Finn J made a summary order under s 31A of the Federal Court Act giving judgment for the respondents in relation to the whole proceeding. His Honour observed that normally it would not be necessary to conduct a detailed examination of the materials put on by the parties before making such an order but stated, at [68]: The evolving manner in which Mr Kowalski has perceived his grievances and has formulated them to secure the relief he has in mind, has necessitated that I conduct in essence a "preliminary trial". 78 With the benefit of that preliminary trial which involved a detailed consideration of the claims actually made by Mr Kowalski as well as those immanent in the material informing the proceeding, his Honour concluded that Mr Kowalski's claims had no prospect of success. 79 The applicants contend that Finn J's decision of 24 July 2007 is able to be reconciled with their contention that the proceeding was vexatious. They submit that the application was groundless and illustrates Mr Kowalski's persistent and habitual attempts to litigate matters in connection with his Mitsubishi employment despite those matters having been decided adversely to him. I agree with this submission. 80 The application to have the proceeding dismissed as vexatious and Mr Kowalski declared vexatious was, with hindsight, premature. It is not unexpected that in the case of a litigant in person that it may take some time to determine that an application is groundless. It is clear that from the beginning that Finn J was unable to determine whether there was any merit in the application because of the state of the pleadings. It is appropriate in such case, and not at all uncommon, that an applicant be given an opportunity to replead. As Kirby J observed in Re Attorney-General:ex parte Skyring (1996) 70 ALJR 321 at 323: It is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.

[36]

SAD 20 of 2009 - appeal from decision in SAD 11 of 2007 81 Mr Kowalski appealed from Finn J's decision dismissing the above proceeding. The orders sought in the 'notice of appeal', which also served as an application for leave to appeal, were set out in the judgment of the Full Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 at [19]: 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 The Full Court also set out Mr Kowalski's grounds of appeal as follows: 4.1 [The primary judge] erred in law because he protected and he aided the first and the second respondent, although the first and second respondent is a wrongdoer. … 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. … 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. … 82 The Full Court outlined the history of the proceedings before Finn J and the multiple opportunities that Mr Kowalski had been given to file "an intelligible and unobjectionable pleading". The Court examined in considerable detail the authorities concerning summary dismissal under s 31A of the Federal Court Act and held that an order for summary dismissal made pursuant to the section is interlocutory and therefore leave to appeal was necessary. The Court held that there was no evidence to support a claim of bias against the primary judge and that his Honour's decision "was not attended with sufficient doubt to warrant its reconsideration by a Full Court". The Full Court concluded that a grant of leave to appeal would be futile. 83 The appeal was vexatious. There was no basis for the scandalous assertions in the grounds of appeal that Finn J had aided the respondents or was biased against Mr Kowalski. In fact, it was quite the contrary. As discussed above Finn J had exercised the patience advocated by Kirby J and had given Mr Kowalski every chance of putting forward any ground that he might have had to support his claims.

[41]

SAD 112 of 2009 - appeal in relation to judicial review 92 On 4 August 2009 Mr Kowalski filed a notice of appeal from Besanko J's judgment upholding the decision of the Tribunal; see [85] above. The Full Court held that the 71 grounds of appeal fell into "two discrete categories": Kowalski v Repatriation Commission [2010] FCAFC 19 at [6]. Mr Kowalski's approach to that appeal is similar to his approach as manifested in many other proceedings. It is therefore useful to quote the basis for the Full Court dismissing the appeal as set out in [7] to [20] of the Full Court's reasons: 7 Mr Kowalski's first, and principal ground of complaint about the primary judge's reasons was that he "perverted the course of justice" in reaching a result that was adverse to Mr Kowalski. The effect of the ground was that Mr Kowalski had brought all of the necessary evidence to support his claim before the Deputy President, who ought therefore to have accepted it and that the Deputy President perverted the course of justice by rejecting the claim; also, the primary judge perverted the course of justice because he rejected Mr Kowalski's appeal. 8 Although expressed in strong language, the substance of this ground of attack was that both the Deputy President and the primary judge were bound to accept Mr Kowalski's claim. In seeking to make good this proposition, Mr Kowalski took us in his oral submissions to some of the evidence contained in the appeal books. He also gave, as an example, the fact that the Deputy President preferred the medical evidence called by the Repatriation Commission to the evidence of Mr Kowalski's expert. 9 It is quite clear that the Deputy President was not bound to accept Mr Kowalski's claim. The function of the Tribunal is to conduct a review of the decision of the decision-maker and to determine whether the decision was the correct or preferable one on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. That was precisely what the Deputy President did. As he said at [36], Mr Kowalski articulated his claim on a large number of alternative or cumulative bases, some of which seemed to be misconceived, and, mindful of the fact that Mr Kowalski was unrepresented, the Deputy President endeavoured to elicit information that may be relevant to the claims. 10 To say that the Tribunal was bound to accept Mr Kowalski's claims is to misconstrue its duties and functions. As Gummow and Hayne JJ said in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], in an inquisitorial process, it is for the applicant to advance his or her evidence in support of the claim and it is for the Tribunal to decide whether the claim is made out: see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. 11 Nor was the primary judge bound to accept Mr Kowalski's claims. The appeal from the Tribunal was on a question of law under the Administrative Appeals Tribunal Act 1975 (Cth). It was for Mr Kowalski to establish that the questions arose and to demonstrate error. The primary judge was satisfied in his comprehensive consideration of the 44 questions of law which were said to arise, that the appeal failed. 12 The second aspect of Mr Kowalski's complaints about the decision of the primary judge was that he was biased. This claim had two separate limbs. The first was that the primary judge proceeded to hear the appeal before awaiting the outcome of an application for leave to appeal brought by Mr Kowalski against the refusal of the primary judge to accede to Mr Kowalski's application that the primary judge disqualify himself. 13 This complaint has no foundation. The primary judge was not bound to await the outcome of the application for leave to appeal. The failure of a judge to disqualify himself or herself may be brought as a ground of appeal from the final orders of that judge. It is not ordinarily to be the subject of a separate application for leave to appeal and the primary judge need not await the fate of any such application. 14 The second aspect of Mr Kowalski's complaint of bias was that the primary judge ought to have disqualified himself for the reasons stated in Mr Kowalski's affidavit of 8 December 2008. 15 We doubt whether that complaint was the subject of Mr Kowalski's notice of appeal. He referred us to two paragraphs, namely 4.1 and 4.70 which, in our view, did not raise it as a ground of appeal. Nevertheless, we will address it. 16 The primary judge dealt with Mr Kowalski's application for the primary judge to disqualify himself in reasons for judgment delivered on 22 December 2008: see Kowalski v Repatriation Commission [2008] FCA 1970. No error is disclosed in those reasons. Indeed, they show that the application was misconceived. 17 In oral argument, Mr Kowalski sought to make good the claim of bias in yet another way. He argued that the Deputy President was biased because he did not permit Mr Kowalski to ask certain questions of witnesses who gave evidence before the Tribunal. That complaint was also the basis for an assertion of denial of procedural fairness. 18 Mr Kowalski took us to a large number of transcript references to support his argument. However, rather than supporting his claim, the numerous passages of the transcript to which we were referred merely made good the finding of the primary judge at [80]. As his Honour said, an applicant is not entitled to ask whatever question he or she thinks appropriate; the Deputy President had the power to disallow irrelevant, or otherwise objectionable, questions and: "… the Deputy President did no more than exercise appropriate control in respect of the conduct of the application for review." 19 Mr Kowalski went so far in his argument of bias as to contend that the Deputy President was not permitted to reject any item of evidence tendered by him and that counsel for the Commission was not permitted to object to the tender. This again demonstrates the proposition that Mr Kowalski's ground of bias (or perversion of the course of justice, which seems to be to the same effect) is misconceived. 20 So too is his similar contention that the primary judge "fabricated" his findings because the primary judge disagreed with Mr Kowalski's submissions. 93 It is abundantly clear from the close analysis that the Full Court gave to Mr Kowalski's submissions that the appeal was groundless. There was no evidence led in support of the two scandalous assertions identified by the Full Court, namely that the primary judge had perverted the course of justice or that the primary judge was biased. 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. The appeal was vexatious.

[43]

SAD 171 of 2008 - application re breach of Heads of Agreement 94 Mr Kowalski commenced this proceeding against Mitsubishi seeking orders that it had breached the Heads of Agreement and had contravened a number of statutes including the Health and Other Services (Compensation) Act 1995 (Cth), the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (SA) and the Misrepresentation Act 1972 (SA). Justice Besanko, commenting that it was "no easy task to discern the real matters raised by the applicant", stated at [30] that the essence of Mr Kowalski's claim seemed to be: 1. The respondent has breached clause 3.4 of the Heads of Agreement; 2. The respondent has breached or contravened s 23 of the Health and Other Services Act; 3. The respondent has breached the various statutory provisions and common law doctrines … in taking the view it did as to its liability to pay compensation to the applicant when regard is had to events which have transpired in connection with the obligation in s 23 of Health and Other Services Act. 95 Justice Besanko rejected all of Mr Kowalski's claims as being without substance and doomed to fail: Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 991. His Honour stated at [43]: Not only is the proceeding doomed to fail as presently pleaded, but I am satisfied that there is no claim of the type advanced. The applicant has already amended once and he has put forward a number of affidavits and written submissions in respect of his "claims", all of which I have read carefully. There is no suggestion that he has a claim either at all or at least a claim which would engage the jurisdiction of this Court. The other route to the same conclusion is that I have no doubt that the amended statement of claim does not identify an arguable cause of action and is embarrassing under O 11 r 16 of the Federal Court Rules. It must be struck out. A party faced with such conclusions is often given the opportunity to replead his or her case. However, that opportunity is not always given and ultimately, whether it is given, depends on the circumstances of the case. It is not appropriate to afford such an opportunity in this case. The applicant has had ample opportunity to articulate a case and, in all the material he has put forward, there is nothing to suggest that he has a claim.

[44]

SAD 171 of 2008 - application to disqualify 96 In the course of the proceeding Mr Kowalski had made an application for Besanko J to disqualify himself. The application was based on Besanko J's involvement, as a judge of the Supreme Court of South Australia, in two proceedings in that Court and on certain interlocutory orders and directions that were made on 11 November 2008 in the proceeding, SAD 171 of 2008, which was then before his Honour. His Honour's reasons for refusing to do so are to be found in Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. His Honour held that none of the questions of law or the issues of fact in the Supreme Court proceedings was relevant to the proceeding in SAD 171 of 2008. In relation to Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 his Honour observed at [5]: The fact that the applicant disagrees with the unanimous decision of the Court in the appeal is not sufficient to support a case of apprehended bias. 97 In relation to the other Supreme Court matter on which Mr Kowalski relied, his Honour's comments are relevant to the issues in this proceeding. At [6] of his reasons Besanko J said: The issue before me in Kowalski v Layton [2006] SASC 28 was whether a purported appeal by the applicant should be struck out, having regard to an order made by Bleby J under s 39 of the Supreme Court Act. The purported appeal was against an order made by the Legal Practitioners Disciplinary Tribunal dismissing as vexatious a complaint against the Honourable Justice Layton. The complaint was said to relate to conduct by the Honourable Justice Layton when she appeared as counsel before her appointment for the respondent in an action by the applicant in the South Australian Supreme Court. I declined to disqualify myself in that application for the reasons I gave (at [9]-[15]). I decided that the appeal was incompetent, or an abuse of process, by reason of the fact that it had been instituted without leave as required by the order made by Bleby J under s 39 of the Supreme Court Act. The applicant's unsuccessful contentions against that conclusion are set out in my reasons (at [17]-[27]). They raise what are, in essence, legal points, where the facts were either not in dispute or were facts which are in no way raised in, or relevant to, the present proceeding. 98 For the reasons given by Besanko J the proceedings, both the primary application and the application for the trial judge to recuse himself, were doomed to failure. The validity of the Heads of Agreement had been upheld in earlier proceedings in which it had also been held that the Agreement superseded any claims Mr Kowalski might have had arising our of his employment with Mitsubishi. The grounds identified as a basis for the recusal application were similarly hopeless. The proceedings were vexatious.

[46]

SAD 133 of 2009 - interlocutory applications 100 On 4 September 2009 Mr Kowalski filed a notice of appeal from the decision of Besanko J in Kowalski v Mitsubishi Motors Australia Limited [2009] FCA 991: see [95] above. The notice of appeal stated that if the decision of Besanko J was interlocutory then leave to appeal was sought. There followed a number of interlocutory applications in the appeal proceeding. 101 On 2 October 2009 Mitsubishi filed a notice of motion seeking to have the appeal dismissed as incompetent because leave to appeal was required and had not been granted. Mitsubishi also sought to have the notice of appeal removed from the Court file pursuant to O 41 r5 of the Federal Court Rules on the ground that it contained scandalous matter. In the alternative Mitsubishi sought to have the scandalous matter struck out. The material in question alleged, at various points and in various ways, that the trial judge had "perverted the course of justice". Mr Kowalski also filed a notice of motion alleging that Mitsubishi's notice did not comply with the Federal Court Rules in that Mitsubishi had filed it before filing its notice of appearance. 102 Those motions were heard by Mansfield J. His Honour dispensed with compliance with the Rules insofar as the Mitsubishi was required to file a notice of appearance prior to filing its notice of motion. Justice Mansfield agreed with the submissions made by Mitsubishi concerning material in the notice of appeal being scandalous and stated at [10]: There is absolutely no foundation for asserting that Besanko J "perverted the course of justice" in the way alleged, and no foundation is shown in what it is alleged in the "Notice of Appeal" to support such an allegation. I propose to strike out from the "Notice of Appeal" the words "he perverted the course of justice and" or words to that effect in paragraphs 2.1 to 2.17 and 4.1 to 4.20 of the "Notice of Appeal". Mansfield J ordered that the offending material be struck out and ordered that the question whether leave to appeal was required be referred to the Full Court for decision. The reasons for judgment given by Mansfield J show clearly that the proceeding was vexatious: Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289.

[50]

Federal Court: SAD 15 of 2009 110 On 27 April 2004 Mr Kowalski filed a claim for rehabilitation and compensation with the Military Rehabilitation and Compensation Commission alleging that certain medical conditions affecting him were the result of his service in the army for 18 months between April 1972 and October 1973. The conditions that were claimed to have first manifested themselves after August 1991 are obesity, Type 2 diabetes, major depression and generalised anxiety which led to a heart attack and open heart surgery in January 1998. The Commission disallowed Mr Kowalski's claims. 111 Mr Kowalski applied to the AAT for review of the Commission's decisions: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009). In evidence given before the Tribunal Mr Kowalski agreed that prior to filing his claims with the Commission he had not told any of the doctors whom he had consulted that he had been in military service or that he attributed his medical problems to his military service. The Tribunal noted, at [49], that Mr Kowalski "thought it was appropriate to give a selective history to his medical practitioners and to medical examiners to suit the particular litigation he was then pursuing". The Tribunal said at [42] of its reasons: All of the doctors whom [Mr Kowalski] consulted were led to believe that his psychiatric state and his physical complications were as a result of his employment with Mitsubishi. It was not until he exhausted every avenue in relation to any claim that he could make against Mitsubishi that he asserted that he was entitled to compensation as a result of his military service. 112 The Tribunal found, at [259], that Mr Kowalski had "made a conscious and deliberate decision not to tell his medical practitioners of his history in the Army". It found that his Army service did not contribute to his medical condition and affirmed the decision of the Commission. 113 Mr Kowalski applied to this Court for review of the Tribunal's decision. The application was heard by a Full Court on 15 December 2009: Kowalski v Military Rehabilitation and Compensation Commission (2010) 114 ALD 8. The Federal Court's jurisdiction to review decisions of the Tribunal is confined to questions of law. The notice of appeal contained 57 purported questions of law however the Full Court held that the vast majority were in fact invitations to inquire into whether the Tribunal had committed some, unspecified, error of law. In general each question was prefaced by words such as: "Did the Tribunal err in law and was it bias (sic) at law" often with the addition "and did it pervert the course of justice". The Full Court stated at [40]: As framed these are not questions of law and are not rendered such by resort to a formula of the kind adopted in the prefatory words of each question. 114 The Full Court accepted, "with some misgivings", the Commission's submission that the notice of appeal could be construed as disclosing two questions of law. The first related to an issue of statutory construction and the second to procedural fairness. The Court held that no error of law was made out in relation to either question. I do not propose to consider the issue of statutory construction here, however the Full Court's reasoning on the issue of procedural fairness is relevant as Mr Kowalski had made similar complaints in many of the proceedings in which he has been involved. 115 The Full Court summarised the basis of Mr Kowalski's complaints to have been denied procedural fairness at [58] of its reasons: The presiding Deputy President was biased against him; The proceedings were "adversarial" and not "inquisitorial"; The Tribunal refused to allow Mr Kowalski to lead evidence he considered appropriate; The Tribunal refused to allow Mr Kowalski to cross-examine Dr Reid, Professor Goldney and Dr Thompkins in the way that he wished; The Tribunal constantly interrupted Mr Kowalski during his cross-examination of Dr Reid, Professor Goldney and Dr Thompkins; The Tribunal refused to allow Mr Kowalski to tender a number of his affidavits as his evidence; and The Tribunal relied on statements made by the Commission's legal advisors from the bar table, as opposed to unchallenged affidavits sworn by Mr Kowalski. 116 As can be seen the procedural fairness objections together amounted to a complaint that the Tribunal had interfered to an extent that prevented Mr Kowalski presenting his case and was evidence of the Tribunal's bias. Having read the transcript of the hearing before the Tribunal and having given particular attention to the passages on which Mr Kowalski relied to support his appeal, the Full Court said, at [59]: Having done so we are satisfied that, far from depriving Mr Kowalski of a reasonable opportunity to present his case, the Tribunal went out of its way to ensure, insofar as it was able, that he was assisted to present his evidence and argument. 117 The Full Court gave some examples which are not only illustrative of Mr Kowalski's conduct during the hearing before the Tribunal but are also consistent with his conduct as described in other proceedings and also in the hearing of this proceeding. At [61]-[62] of its reasons the Full Court said: There were a number of occasions when the Tribunal disallowed certain questions which Mr Kowalski had put to witnesses in cross-examination. This occurred when questions asked were prolix, unintelligible or repetitive. In many of these instances, however, the Tribunal endeavoured to assist Mr Kowalski by reframing the questions so that they would be intelligible to the witness who then answered the rephrased questions. At other points in the case Mr Kowalski was instructed by the Tribunal to cease pursuing lines of questioning which were either irrelevant or repetitive. 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. 118 The Full Court gave other illustrations all of which suggested that Mr Kowalski did not understand what was required to present his appeal and was not prepared to entertain any proposition that was not consistent with his position. The Registrar submitted that both the application to the Tribunal and the appeal to the Full Court were vexatious. I agree with this conclusion and accept the following written submissions made in support of the Registrar's application: The proceeding was foredoomed to fail for two reasons: first, the [Tribunal] found that there was not a scintilla of evidence that the diseases of which he complained were caused by his connection with the defence force. Secondly, there were no matters of law disclosed in the Notice of Appeal filed in the Federal Court. The proceeding represented an attempt to litigate again the cause of the same diseases which Mr Kowalski had asserted, prior to 2004, were caused by MMAL, in circumstances where it was found that a deliberate attempt was made to refrain from telling medical practitioners about his history in the army.

[51]

SAD 75 of 2009 - interlocutory application 119 Mr Kowalski applied to the Administrative Appeals Tribunal for review of a decision of the Military Rehabilitation and Compensation Commission. The Commission had rejected a claim for compensation in respect of gastro-oesophageal reflux disease which the appellant said was caused by his service in the Australian Army. On 27 May 2009, the Tribunal held that his condition was not caused or contributed to by his Army service: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382. Mr Kowalski applied to the Federal Court for judicial review of the Commission's decision. 120 In an interlocutory application Mr Kowalski applied to Besanko J for his Honour to disqualify himself from involvement in the application for judicial review. Besanko J rejected any suggestion of actual bias but agreed to disqualify himself because of his involvement in other proceedings: Kowalski v Military Rehabilitation and Compensation Commission [2009] FCA 1044. His Honour said that the question was whether by reason of either or both of his decisions in Kowalski v Repatriation Commission [2009] FCA 794 (see [85] above) and Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 991 (see [95] above) he should disqualify himself from further participation in the proceeding. 121 His Honour held, at [23], that he had not made any findings of fact in Kowalski v Repatriation Commission [2009] FCA 794 because the nature of the appeal and its merits meant that he was not required to make findings of fact. His Honour added, however, that he had dealt with facts found by the Tribunal, and "at least one of those facts is in issue in the present proceeding". His Honour held that "in view of a common factual background and the matters the appellant seeks to agitate" it was appropriate that he disqualify himself. Given that conclusion it was not necessary for his Honour to consider the other decision in issue. 122 The applicants do not contend that this proceeding was vexatious. I do not need to consider it further.

[53]

SAD 75 of 2009 - judicial review of AAT decision 126 The application for review of the Tribunal's decision of 27 May 2009 was heard by Mansfield J: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408. His Honour commented, at [17], that the notice of appeal was unhelpful. It alleged 23 errors of law and asserted six grounds of appeal but was "to a degree repetitious", in part "clearly unfounded and inappropriately expressed". His Honour also said, at [18]: To the extent that the Notice of Appeal refers to grounds of appeal or errors of law to the effect that the Tribunal "deliberately and consciously perverted the course of justice", or makes similar such claims including that of actual bias, those claims are rejected. There is simply no material from which those assertions can be made out. They are not made out by the appellant's dissatisfaction with the outcome of the Tribunal's review, or because the appellant disagrees with aspects of the Tribunal's reasons, or because he considers that it may have erred in its factual findings or its understanding of, or application of, the law. 127 After careful consideration, Mansfield J identified four issues emerging from Mr Kowalski's grounds of appeal and his oral and written submissions. His Honour discussed those issues in some detail and concluded that no error of law on the part of the Tribunal had been made out. In particular Mansfield J held, at [35], that the notice of appeal, does not demonstrate even an arguable error on a matter of law by asserting (as the notice of appeal persistently does) that a finding of fact by the Tribunal was an error of law because it "perverted the course of justice". His Honour further stated at [49]: In my judgment, the appellant has failed to establish that the Tribunal, by the conduct of its review, did not give the appellant an appropriate opportunity to present evidence and to make submissions. Nor has he made out that the Tribunal was actually biased or, by the way it conducted the review, might a fair-minded observer reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to its task: Minister for Immigration v Jia Legeng (2001) 205 CLR 507; Johnson v Johnson (2000) 201 CLR 488. In substance, in my view, the appellant's complaint amounts to no more than that he disagrees with the Tribunal's findings of fact … 128 The applicants contend that this proceeding was vexatious and points to the comments of Mansfield J quoted above in support of this contention. I accept this submission. The lack of any support for Mr Kowalski's submission that the Tribunal had acted to pervert the course of justice and his Honour's findings that his complaints amounted to no more than disagreement with the Tribunal's findings of fact indicate that the proceeding was doomed to failure. 129 Similarly the applicants contend that the application for leave to appeal in SAD 160 of 2009 was also vexatious. The application was hopeless. It was made in relation to a proceeding in which Mr Kowalski had obtained the orders sought on his notice of motion and in support of an order that had not been sought. I agree with these submissions.

[54]

SAD 81 of 2009 - application for judicial review 130 This application arose out of the Heads of Agreement and Medicare Australia's need to determine whether, as a result of the settlement between Mr Kowalski and Mitsubishi, it was necessary for Mr Kowalski to reimburse the Commonwealth for past Medicare and other benefits received in the course of treatment of his various medical conditions. 131 Medicare Australia had required Mr Kowalski to provide it with a completed history statement and statutory declaration pursuant to s 18(1) of the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act). Mr Kowalski had not provided a statement claiming that the Heads of Agreement was not valid because it had been made under duress. Medicare responded to this claim in letters dated 11 and 25 March 2009 where it made the point that until Mr Kowalski's claim was legally determined it was entitled to accept the Heads of Agreement as a declaration of the terms of settlement between Mr Kowalski and Mitsubishi. It reminded Mr Kowalski that his completed history and statutory declaration were due to be returned to Medicare. 132 Mr Kowalski applied to the Administrative Appeals Tribunal for review of Medicare's "decision". The Tribunal held that it did not have jurisdiction to review the matter: Kowalski v Chief Executive Officer of Medicare Australia [2009] AATA 427. Mr Kowalski applied to this Court for review of the Tribunal's decision. 133 Justice Mansfield held that the Tribunal did not err in law in deciding that it did not have jurisdiction. His Honour held that there was no reviewable decision by Medicare and dismissed the application and ordered Mr Kowalski to pay indemnity costs: Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1072. Mansfield J's opening comment in his reasons for judgment was that the purpose of the proceeding "in a practical sense" was not apparent. His Honour elaborated on this point, at [17]-[19], when explaining his reasons for ordering indemnity costs: In my view, the present circumstances warrant departure from the usual course as to costs. Particular features of the matter justify the Court departing from that usual course and add colour to the matter in this instance. The first is, in my view, that a plain reading of the two letters of 11 and 25 March 2009 indicates that Medicare had not made a decision about the character of the payments under the Heads of Agreement with MMAL, and had not decided that the applicant had not complied with ss 18, 23A or 23B of the HOSC Act. That is so plain that, apart from considering that the proceedings should be summarily dismissed because the contention is unarguable, it was in my view capricious of the applicant to have instituted the proceeding in the first place. It was further made plain by the Tribunal in its reasons. The applicant, moreover, was warned of the possible consequences by the respondent when pointing out the futility of the proceedings in correspondence immediately following the institution of the appeal. There is a further reason. When the matter first came on for directions, it was stood over to enable the respondent, Medicare, to indicate whether it regarded the Heads of Agreement between the applicant and MMAL as indicating the payment of some amount by way of medical costs which might be recoverable or might have been declared to Medicare and might have been recoverable from the applicant. In fact, subsequently on 30 July 2009, the solicitors for Medicare wrote to the applicant on that topic. That correspondence indicated quite clearly that Medicare considered that the moneys paid to the applicant by MMAL are "compensation" for the purposes of s 4 of the HOSC Act, so that the moneys paid to the applicant by MMAL as compensation are amounts in respect of which Medicare might seek reimbursement under the HOSC Act. However, by a letter a few days earlier, on 27 July 2009, Medicare informed the applicant that it did not intend to take any further action against him under the HOSC Act to recover the moneys paid by MMAL under the Heads of Agreement. It pointed out then that the proceeding appeared to be entirely unnecessary. That is self-evident. It invited the applicant to discontinue the proceeding. It foreshadowed an application for indemnity costs if the proceeding was not discontinued. Whilst that letter of 30 July 2009 might indicate that, now, Medicare has made a decision by giving notice under s 23B(1) of the HOSC Act that Medicare considers that the applicant's statement to Medicare under s 23A is not substantially correct (because it asserted that no compensation had been paid pursuant to the Heads of Agreement), that was not the state of affairs at the time of the Tribunal's decision. The applicant has nevertheless pursued the claim, even though it is apparent that, for whatever reason, there is now no requirement upon him to repay moneys payable under the Heads of Agreement. 134 In concluding that this proceeding was vexatious it is not necessary to go beyond the comments of Mansfield J quoted above. The proceeding was entirely unnecessary and Mr Kowalski had been clearly advised that this was so.

[55]

SAD 165 of 2009 - appeal from SAD 81 of 2009 135 Mr Kowalski compounded his vexatious conduct in the above proceeding by seeking leave to appeal from the decision of Mansfield J. His application was dismissed by Bennett J who also ordered that he pay the costs of the application on an indemnity basis: Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1420. 136 Before Bennett J, Mr Kowalski alleged that Mansfield J was biased and had denied him procedural fairness. Her Honour rejected those allegations holding that Mr Kowalski had not established any basis for the allegations and none was apparent. Justice Bennett questioned the utility of the proceedings and was told by Mr Kowalski that he wished to have it determined at law whether the monies received by him from Mitsubishi were in the nature of compensation as this would assist him in other proceedings. In relation to this submission, her Honour commented at [24]: There is no utility in the present proceeding. In effect, this case has no subject matter. An attempt by Mr Kowalski to maintain these proceedings in order to influence in some unspecified way other proceedings is an abuse of process and forms no basis for allowing this application for leave to appeal. 137 Her Honour noted that Mr Kowalski had made numerous allegations against the primary judge and against the solicitor for Medicare that were without foundation and refused to consider them further. In ordering that Mr Kowalski pay indemnity costs Bennett J stated: Mr Kowalski was clearly on notice from the decision of the primary judge that his Honour was of the view that the proceedings had no utility. He had been warned by Medicare, when pointing out to him the futility of the proceedings commenced before the primary judge, that it would seek indemnity costs from his Honour. Mr Kowalski has persisted in this application for leave to appeal. There is no basis for his grounds of appeal. Medicare should be compensated for its costs of defending this application. Although the Court is generally more reluctant to order indemnity costs against self-represented litigants, I consider that it is appropriate to order costs against Mr Kowalski on an indemnity basis in these circumstances. 138 In my view the proceeding before Bennett J was vexatious for the reasons given by her Honour.

[58]

SAD 159 of 2009 - application for judicial review 144 Mr Kowalski contended that a letter dated 9 October 2009 from the Superannuation Complaints Tribunal contained a reviewable decision. The letter referred to a decision made by the Trustee of the Superannuation Fund on 18 August 1992 to decline a disability claim made by Mr Kowalski. The letter is reproduced in the reasons of Besanko J: Kowalski v Superannuation Complaints Tribunal [2010] FCA 473 at [5]. The letter advised that the Tribunal did not have jurisdiction to deal with Mr Kowalski's complaint and referred to previous complaints in connection with which Mr Kowalski was advised that the Tribunal was prevented from dealing with his complaints because the Trustee's decision was made prior to 1 November 1994. Under the heading "Appeal Rights" the letter advised: If you are dissatisfied with the Tribunal's decision that the complaint is outside the Tribunal's jurisdiction you may apply to the Federal Court for judicial review of that decision. An application for review must be made not later than the 28th day after the day on which a copy of the Tribunal's decision is given to you or within such further period as the Federal Court allows. 145 The respondents in the proceeding submitted to Besanko J that the 'decision' in the letter was made by an officer of the Tribunal rather than by the Tribunal, however his Honour proceeded on the assumption most favourable to Mr Kowalski, namely that it was made by the Tribunal. Despite this his Honour found that the application was not an exercise of the Tribunal's determination-making power and should be dismissed pursuant to s 31A(2) of the Federal Court Act as it had no reasonable prospect of success. 146 The applicants submit that this application was vexatious. They submitted that it was made clear in the letter dated 9 October 2009 that the Tribunal had no jurisdiction "yet Mr Kowalski still instituted the proceeding". In their submission the application was bound to fail "and the institution of the appeal was a predictable response" to the letter sent by the Tribunal. 147 I am not inclined to accept that submission. While it would appear that Mr Kowalski had been told not only in the letter of 9 October but also in relation to earlier complaints that the Tribunal had no jurisdiction, it is possible that the advice as to appeal rights (see [144] above) encouraged an unrepresented litigant to seek a second opinion. Moreover, and more importantly, the fact that the proceeding had no "reasonable" prospect of success, does not mean that it was foredoomed to fail. The threshold for summary dismissal pursuant to s 31A(2) is a lower threshold. On balance I do not find that the application for judicial review, though misconceived, was vexatious.

[60]

Federal Court: SAD 176 of 2009 151 On 6 November 2009 the AAT set aside a decision of the Veterans' Review Board which had accepted Mr Kowalski's claim for a pension. Mr Kowalski applied for judicial review of the AAT's decision. On 30 April 2010 Mansfield J dismissed the application: Kowalski v Repatriation Commission [2010] FCA 409. 152 In his reasons for decision Mansfield J stated that the background to the appeal was the same as the background to the appeal in Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 which was also delivered on 30 April 2010; see [126] above. Justice Mansfield found that the notice of appeal was "unhelpful" and "repetitious" and said, at [64] of his reasons: To the extent that the Amended Notice of Appeal refers to errors of law to the effect that the Tribunal "deliberately and consciously" "perverted the course of justice", or made a "perverted decision" or "fabricated" certain findings, or "deliberately and consciously" failed to conduct the review according to law, those claims are rejected. There is no material from which those assertions can be made out. They are not made out by the appellant's dissatisfaction with the outcome of the review, or because the appellant disagrees with aspects of the Tribunal's reasons, or because the appellant considered that the Tribunal did not follow procedures required by the law or erred in its factual findings or its understanding of, or application of, the law. No other material has been identified which could support those allegations. They are simply gratuitous and unfounded epithets. It is not necessary to say more about them. 153 Notwithstanding these observations, Mansfield J found it possible to refine a list of alleged errors of law which he set out at [65] of his reasons. His Honour gave careful consideration to these alleged errors but found that none was made out. In conclusion his Honour addressed the allegations of bias and said, at [104]: On the question of actual or apprehended bias, there were no matters raised by the appellant beyond those raised at the hearing, when the Tribunal, correctly in my view, found that there was no basis for the Tribunal as then constituted to be disqualified from hearing the matter. There is nothing which indicates that the Tribunal as then constituted approached the hearing with a state of mind committed to a conclusion, or that a fair minded lay observer would reasonably apprehend that it might not bring an impartial mind to the making of its decision. The transcript does not reveal that the Tribunal, during the hearing, was other than open-minded in its approach to witnesses or other evidence or that it in any way acted so as to indicate that it was not bringing an impartial mind to the resolution of the issues 154 Given that Mansfield J found no basis for the allegations of errors of law, and in the light of his Honour's comments at [64] and [104] of his reasons, I am satisfied that this proceeding was vexatious.

[61]

SAD 203 of 2009 - application to disqualify 155 The principal application in this proceeding was an appeal brought by Mr Kowalski pursuant to s 44 of the AAT Act; see below at [162]. Following an interlocutory application made by Mr Kowalski, Lander J agreed to recuse himself from further involvement in the principal matter: Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 265. 156 Justice Lander acceded to the request on the basis that he had made strong findings in relation to Mr Kowalski's conduct and credibility in a proceeding in the AAT where he was sitting as a Deputy President: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 38. At [2]-[3] of his reasons Lander J summarised his comments in the AAT proceeding: In reasons published on 21 January 2009, we said of the applicant that he was a most difficult party; he made insulting remarks of the judges and the State system; he was antagonistic, argumentative and often quite unreasonable; he constantly interrupted the AAT and counsel for the respondent; he would not accept or take direction, nor would he take advice; he insulted counsel and the solicitors for the respondent; he made a number of groundless claims of unprofessional conduct on their part; he insulted two medical witnesses; he was rude to them and about them; he reported both doctors to the Medical Board; he telephoned one of the medical practitioner's wives and wished her a miserable Christmas. He made it clear that unless he had his own way or obtained the result to which he claimed to be entitled, then it was because the AAT must be biased or simply wrong. We said of him that we would only be prepared to accept his evidence where it was corroborated by the evidence of another witness who we found to be reliable and credible, or corroborated by documents which are themselves reliable but where his evidence appears to be self-evidently reliable. 157 Justice Lander added that he did not resile from the comments in any way however his Honour concluded that, having regard to the strength of those comments "a fair-minded lay observer might reasonably apprehend" that he would not be able to bring an impartial and unprejudiced mind to the proceeding. His Honour declined to entertain Mr Kowalski's application for costs because he had recused himself however, in an attempt to preclude another appeal, his Honour explained why costs would not be awarded in respect of such an application. 158 The applicants have not contended that the interlocutory application was vexatious and I accept that it was not, however, I have quoted his Honour's comments for their relevance to the question whether Mr Kowalski habitually and persistently institutes vexatious proceedings.

[63]

SAD 203 of 2009 - application for judicial review 162 On 16 December 2009 the AAT refused Mr Kowalski's application for an extension of time within which to seek review of a 'decision' of the Chief Executive Officer of Medicare Australia. Mr Kowalski appealed from that decision pursuant to s 44 of the AAT Act. Justice Mansfield dismissed the application for judicial review under s 31A(2) of the Federal Court Act and ordered that Mr Kowalski pay the respondent's costs on an indemnity basis: Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413, (2010) 185 FCR 42. 163 Justice Mansfield referred to the lengthy and complex history of the matter which, his Honour said, was set out in two earlier decisions: Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1072 (see [133] above) and Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1420 (see [135] above). His Honour held that the Tribunal's decision did not exhibit any error of law and, as there was no reasonable prospect of the appeal being successful it should be summarily dismissed. 164 Justice Mansfield then commented that there were some additional observations that it was appropriate for him to make and, at [34]-[35] said: First, as has been remarked in other judgments in which Mr Kowalski has been a party, he is prone to make scandalous offensive and unsubstantiated allegations about public figures, about judges or administrative decision makers, and about the solicitors and counsel appearing in those matters. Even allowing for him being a litigant in person, those allegations are entirely inappropriate. 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. Those sorts of assertions, or like offensive epithets, should not be tolerated. See eg the observations of Gyles, Stone and Buchanan JJ in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [3] and [10]. In this instance, I propose to direct that, in the event that any person seeks access to the transcript, it not be available for inspection except by leave of a judge who may first consider whether it be redacted to remove the scandalous assertions in it. If such allegations were made by others about Mr Kowalski, accepting that they may be inaccurate, he would be the first to complain. He should extend the same courtesy to others. 165 The applicants submit that it was inevitable that the proceeding would fail and, given the earlier decisions referred to in [163] above, it was vexatious to institute this proceeding. It was submitted that, as with the earlier proceedings against the Chief Executive Officer of Medicare, "there was no subject matter in respect of the proceedings and the proceedings had no practical utility". I accept this submission and find that the proceeding was vexatious.

[64]

Federal Court: SAD 1 of 2010 166 This was an application for leave to appeal from a decision of the Federal Magistrates Court in Kowalski v Cole & Ors [2009] FMCA 1222 given on 14 December 2009. It was one of many proceedings that Mr Kowalski has instituted against his former legal advisers and service providers. In this case the respondents were solicitors who had represented Mr Kowalski in a number of proceedings since 1989, in particular in proceedings against Mitsubishi. 167 The background to the dispute between Mr Kowalski and his former solicitors is complex and is set out in some detail in the reasons of Mansfield J: Kowalski v Cole [2010] FCA 410. It is accurately summarised in the written submissions made on behalf of the Registrar and I gratefully adopt that summary which is as follows: As background, Mr Kowalski issued proceedings against the respondents in the District Court for professional negligence in 1996. These proceedings were dismissed in February 2002. He then lodged disciplinary proceedings against them in the Legal Practitioners Disciplinary Tribunal in 2005. The Tribunal delivered a decision exonerating the respondents. At the same time there were numerous actions relating to costs, all of which were decided in favour of the respondents. Finally, there were a number of actions in the Magistrates Court in relation to moneys held in the respondents' trust account. It was decided that the respondents were entitled to retain these funds. In 2008 Kowalski issued proceedings against the respondents in the Federal Magistrates Court, claiming, amongst other things, theft, fraud, impropriety, breaches of the Legal Practitioners Act, breach of contract, breach of good faith, breach of fiduciary duty, breaches of the Fair Trading Act and the Trade Practices Act and unconscionable conduct. 168 Federal Magistrate Simpson held that the proceeding was an attempt by Mr Kowalski to re-litigate matters which have already been judicially determined in earlier actions and was therefore vexatious and an abuse of process. His Honour observed that it was extremely difficult, if not impossible, to identify causes of action in the Amended Statement of Claim filed by Mr Kowalskiand the respondents should not be required to plead to it. At [20] of his reasons, the Federal Magistrate described the Amended Statement of Claim as follows: The Applicant's Amended Statement of Claim comprises twenty-two pages of condensed typing divided into 106 paragraphs. The pleading is a rambling and convoluted diatribe on the alleged misconduct of the Applicant's former solicitors, the Respondents. There has been no attempt by the Applicant to concisely and precisely plead his case. There has been no attempt by the Applicant to confine the pleading to the material facts necessary to establish the causes of action but instead includes much material that is, at best, evidence by which facts might be proved or, at worst, totally irrelevant. 169 His Honour held that it was not appropriate for Mr Kowalski to be permitted to file a Further Amended Statement of Claim and summarily dismissed the proceeding pursuant to s 17A(2) of the Federal Magistrates Act 1999 (Cth). 170 Justice Mansfield refused Mr Kowalski's application for leave: Kowalski v Cole [2010] FCA 410. In relation to Mr Kowalski's criticism of the Federal Magistrate's assessment of the Amended Statement of Claim, his Honour gave his own assessment, at [53]-[54]: It is a 22 page document of in excess of 100 paragraphs or subparagraphs. It alleges facts extending back to 1989. It is partly factually and partly argumentative. Its recitals, so far as they are apparently factual, demonstrate that those facts have variously been part of one or more of the earlier proceedings involving the applicant and the respondents. That aspect is dealt with below. It is repetitive, and in many instances, it is difficult to discern where the line is between fact and argument. It has a number of apparently factual conclusions (such as assertions of extortion or fraud) without a clear factual basis being specified. It quotes communications from or to third parties without it being clear what the primary fact is which is being alleged. It quotes findings or remarks from other judgments without it being clear what the primary fact is which is being alleged. 171 Justice Mansfield concluded that there was no real prospect of the applicant demonstrating on an appeal that the amended statement of claim should not have been struck out. His Honour also held that the Federal Magistrate was correct that issues sought to be raised by Mr Kowalski had been determined in earlier proceedings and that he was estopped from re-litigating the matters. 172 In my view the proceeding in the Federal Magistrates Court and the subsequent leave application were both vexatious for the reasons given by the Federal Magistrate and Mansfield J.

[66]

SAD 35 of 2010 - appeal from Federal Magistrate's refusal to disqualify himself 175 Following the decision of Simpson FM to recuse himself from further involvement in the proceeding against Complete Exhaust Specialists Marion, the matter was transferred to the docket of Lindsay FM. Mr Kowalski's claim in the proceeding was for damages and compensation for misleading him, through his wife, in providing a replacement muffler to his motor vehicle. The claim was made pursuant to the Trade Practices Act 1974 (Cth). At a directions hearing on 10 March 2010 the respondents challenged the application of the Act as the respondents were a husband and wife (second and third respondents) and their unincorporated partnership (first respondent). The Federal Magistrate ordered that the jurisdictional question be determined before the substantive claim and listed it for hearing on 24 March 2010. As the respondents did not wish to make any submissions on the jurisdictional issue, the Federal Magistrate excused them from attending that hearing. 176 At the hearing on 24 March 2010 Mr Kowalski made an oral application to Lindsay FM to disqualify himself on the ground of apprehended bias because he had helped the respondents with their case. Apparently Mr Kowalski objected to his Honour taking the jurisdictional issue seriously and had excused the respondents from attending. His Honour declined to disqualify himself. 177 In his reasons for judgment in relation to Mr Kowalski's application for leave to appeal, Kowalski v Complete Exhaust Specialists Marion [2010] FCA 412, Mansfield J said, at [8]: The issue of jurisdiction was clearly identified to Mr Kowalski. The excusing of the respondents in those circumstances from attending the hearing as to jurisdiction does not in any sense indicate to a fair-minded observer knowing of the circumstances relating to the hearing, that Lindsay FM might not bring an impartial attitude to or adjudication of the dispute before him. Nor can it be said that Lindsay FM could possibly have exhibited to a fair-minded and reasonable observer that he would not approach the determination of the claim with an open mind simply by indicating that the issue of jurisdiction might first be determined, it being an obvious issue to arise once it was plain (as was proved by evidence given by the second respondent at the hearing on 10 March 2010) that the first respondent was not an incorporated entity. 178 In the interval between the directions hearing on 10 March 2010 and the hearing of the jurisdictional issue on 24 March 2010, Mr Kowalski amended his application to include a claim under the Fair Trading Act 1987 (SA). The Federal Magistrate held that this amendment was to no avail and that as the jurisdiction of the Court was not enlivened by reliance on the Trade Practices Act, the accrued jurisdiction which, had the court's jurisdiction been enlivened, would extend to issues under the State legislation was also not enlivened. 179 In the Federal Court, Mansfield J held that his Honour was correct in so holding and dismissed the application for leave to appeal. It is clear that Mr Kowalski's application had no prospects of success. As the applicants submitted, Mr Kowalski had the advantage of the judgment of Lindsay FM which clearly explained the jurisdictional issue. Despite this he sought leave to appeal. In my opinion the proceeding was vexatious.

[68]

Judgments delivered after hearing 183 Between the hearing of these proceedings and 31 March 2011, four judgments in proceedings instituted by Mr Kowalski have been delivered, all on 28 March 2011. Regrettably they fall into a now familiar pattern. Mr Kowalski was unsuccessful in all four. Two were appeals from judgments of Mansfield J in proceedings that I have already determined were vexatious. The Full Court in each appeal found that the appeals had no merit. The appeal judgments are: (a) Kowalski v Repatriation Commission [2011] FCAFC 43 - an appeal from the judgment of Mansfield J discussed above at [151]. (b) Kowalski v Military Rehabilitation and Compensation Commission [2011] FCAFC 44 - an appeal from the judgment of Mansfield J discussed above at [126]. While it is strongly arguable that these appeal proceedings were vexatious, as they were decided after the hearing and Mr Kowalski has not had the opportunity to make submissions in respect of them, I make no such finding. 184 The third judgment is Kowalski v Bourne [2011] FCA 269. It was an appeal from the Federal Magistrates Court which had dismissed proceedings instituted by Mr Kowalski against Mr Tim Bourne, a legal practitioner who had previously acted for him. The notice of appeal contained scandalous allegations against the learned Federal Magistrate including allegations of bias, perverting the course of justice, acting illegally and fabricating parts of his decision. Logan J dismissed the appeal holding, at [56], that there was "a complete absence of merit in its grounds". 185 The last of the four judgments delivered since the conclusion of the hearing in this matter concerned an application for leave to appeal from a judgment of Mansfield J summarily dismissing claims by Mr Kowalski that had been compromised under the Heads of Agreement. His Honour held that the application was an abuse of process that had no real prospect of succeeding "partly because they have already been decided adversely to him, partly because this Court has no jurisdiction to entertain them, and partly because they are simply without merit"; Kowalski v Mitsubishi Motors Australia Limited [2010] FCA 1171 at [3]. 186 The application for leave to appeal from Mansfield J's decision was dismissed by Logan J: Kowalski v Mitsubishi Motors Australia Limited [2011] FCA 270. His Honour's observations at [27]-[33] of his reasons are expressions of concern about the plethora of vexatious litigation in which Mr Kowalski has been involved. 187 It is not necessary for me to make a finding as to whether the above four proceedings were vexatious however, in view of the finding made and the conclusions drawn in each of the judgments it is difficult to see how such a conclusion could be rebutted. In any event, they are ample evidence of a pattern of behaviour that is also manifested in the proceedings that I have held to be vexatious.

[73]

Habitually, persistently and without reasonable grounds 195 Insofar as I need to be satisfied that Mr Kowalski, without having reasonable grounds for doing so, habitually and persistently institutes vexatious proceedings, the facts speak for themselves. 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 made against him, many of which have been for the payment of indemnity costs. 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. His Honour said, at [278]: There has been a large number of cases instituted by the defendant against the plaintiff vexatiously. I have identified 30 such proceedings, 27 of which have been instituted in the period beginning about 12 months after the settlement agreement, and most of which have sought, in one way or another, to undo it. However, the defendant has also continued to attempt to re-litigate issues previously determined against him on grounds which have been rejected on many occasions, being grounds on which he has also resisted the making of an order in these proceedings. The defendant has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him. 197 The proceedings I have considered have been largely, but not solely, directed to the Mitsubishi parties and I have no hesitation in finding that those parties are persons aggrieved within the meaning of O 21 r2.

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Discretion 198 I have found that the requirements of O 21 rr 1 and 2 have been satisfied and that I am therefore entitled to make the declarations and orders sought. The final issue to be considered is whether, as a matter of discretion, such relief should be given. In my opinion it should be given. 199 As previously discussed, the relief for which the Rules provide is extreme however it is not absolute. I have discussed the principles above at [30] et seq. The rules strike a compromise between the interests of the vexatious litigant and the countervailing need to protect the Court, potential respondents and the community in general from the consequences of frequent, habitual and groundless litigation. In this case the balance is in favour of restricting Mr Kowalski's right to commence proceedings by requiring him first to obtain leave to do so. 200 The Court's "overarching purpose" as laid out in s 37M of the Federal Court Act "is to facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. The just resolution of disputes requires considering the rights of both parties to the litigation; Watson v Watson (1968) 70 SR(NSW) 203 at 206. Injustice cannot always be remedied by an order for costs. 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 Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe. Allowing a situation to continue in which respondents, litigants in general and the Court are subjected to continual vexatious litigation is not consistent with s 37M. 201 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. 202 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. 203 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. 204 As a consequence of the continual interruptions by Mr Kowalski, oral submissions on behalf of the applicants that would have been expected to be completed on the first day of the hearing, extended until the afternoon of the second day. Mr Kowalski was repeatedly warned that his disruptive behaviour was likely to result in him having less time than expected for his submissions. As it happened, although Mr Kowalski complained about being given a limited time to make submissions, in fact he was not cut short and was able to make full oral submissions.

[75]

APPLICATIONS TO DISQUALIFY 205 During the course of the hearing Mr Kowalski made a number of requests for me to disqualify myself. Each time I declined to do so and now briefly set out my reasons for so declining. 206 As mentioned above Mr Kowalski is a difficult litigant. In my view, his disruptive conduct was such as to constitute contempt of court. Nevertheless I decided that the interests of justice would best be served, if at all possible, by ignoring his behaviour and allowing the hearing to continue. As mentioned above, this necessitated frequent short adjournments which added to the disruption although they generally resulted in Mr Kowalski modifying his behaviour for a short period. 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. 208 Eventually it was clear that Mr Kowalski was not prepared to abide by my rulings. He persisted in asking the questions that had been ruled out of order and would not move on to any other questions. In the circumstances I excused the witnesses over the objections of Mr Kowalski. There were other difficulties such as Mr Kowalski wanting to cross-examine witnesses and make submissions before all the evidence was in. In the circumstances, the rulings to which Mr Kowalski objected were necessary to maintain order in the courtroom and allow the hearing to proceed. In Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [10] the Full Court commented on the necessity to control litigants who insist on disrupting proceedings: The liberty which the Court frequently extends to unrepresented litigants was systematically abused by Ms Bahonko in the present case. She seems unwilling to respect reasonable standards of conduct in the material which she appears to feel she may place before the Court as a matter of right. The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not to be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all. Ms Bahonko, by her conduct, breached the necessary standards in a systematic and apparently intentional way. These comments equally apply to Mr Kowalski's conduct. In the circumstances, I do not believe that a fair-minded observer would have reasonably apprehended that I would not bring an impartial and unprejudiced mind to the resolution of the questions I was required to decide in this proceeding.

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