KAZIMIR Kowalski v Mitsubishi Motors Australia Ltd ACN 007 870 395

[2012] HCASL 43

KAZIMIR KOWALSKI
v
MITSUBISHI MOTORS AUSTRALIA LTD ACN 007 870 395 & ORS
[2012] HCASL 43
A32/2011

1. Since 1989, the applicant has been involved in numerous proceedings against the first respondent, who is his former employer, and related parties, including the second and third respondents, in which the applicant has sought compensation for alleged work-related injuries.  The applicant has continued to pursue such compensation notwithstanding that, by an agreement dated 27 October 1998, he agreed to accept a lump sum "in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment" with the first respondent. 

2. On 7 April 2011, the Federal Court of Australia (Stone J) made orders in two proceedings separately commenced by the Registrar of the Federal Court of Australia ("the Registrar") and the respondents.  The orders relevantly declared, pursuant to O 21 rr 1 and 2 of the Federal Court Rules 1979 (Cth) ("the Federal Court Rules"), that the applicant "has habitually, persistently and without reasonable grounds instituted vexatious proceedings" in the Federal Court against the respondents and precluded the applicant from continuing, or instituting further, proceedings against the respondents without leave.  Stone J found that the applicant had instituted 25 vexatious proceedings in the Federal Court.  Whilst Stone J recognised that relief under O 21 of the Federal Court Rules was an extreme remedy, her Honour considered it an appropriate case in which to grant such relief.

3. On 15 April 2011, the applicant filed notices of appeal against Stone J's decision and on 29 April 2011 filed notices of motion seeking a stay of her Honour's orders. The notices of motion came on for hearing before Flick J three days prior to the notification of the listing of the appeals for hearing. Flick J held that, by virtue of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant required leave to bring the appeals as Stone J's judgment was interlocutory. Flick J considered the applicant to have applied orally for such leave. His Honour held that leave should be refused, primarily because the applicant's appeal had no real prospects of success. His Honour dismissed the applicant's notices of motion.

4. On 8 December 2011, the Full Court of the Federal Court of Australia (Jacobson, Siopis and Nicholas JJ) refused to set aside the orders made by Flick J and declared the applicant's appeals incompetent.  The Full Court held that Flick J was correct to find that Stone J's judgment was interlocutory and that an application for leave to appeal was made to Flick J.  Accordingly, there was no basis upon which to set aside his Honour's orders.  The Full Court also expressed the view that Stone J was correct to find that the applicant had instituted 25 vexatious proceedings and that it therefore would have dismissed the applicant's appeals if they had been competent.    

5. The applicant seeks special leave to appeal to this Court against the Full Court's judgment insofar as it concerns the respondents.  The application for special leave does not advance any questions of law that would justify a grant of special leave nor identify any reasons to doubt the correctness of the Full Court's decision. 

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow	S.M. Kiefel
29 March 2012