Vexatious litigant ruling stands

A former Mitsubishi Motors employee who has initiated 34 Federal Court actions has lost his appeal against orders declaring him a vexatious litigant and preventing him from beginning any further proceedings without leave.

Justice Margaret Stone issued the orders in April following applications by the Registrar of the Federal Court and what she termed the "Mitsubishi Parties".

She found that 25 of the former employee's 34 Federal Court proceedings (33 between 2001 and 2010) were vexatious, and said she was satisfied that he had "habitually, persistently and without reasonable grounds" instituted proceedings. She made orders under the Federal Court's rules that he was not to institute any further proceedings without leave. (The remaining action was a wrongful dismissal action against Mitsubishi in 1997, which was not claimed to be vexatious.)

A week after Justice Stone issued her orders, the former employee filed lengthy notices of appeal.

Justice Geoffrey Flick, however, in June determined that an order declaring someone to be a vexatious litigant and requiring that they obtain leave to institute or continue a proceeding was interlocutory and required leave to appeal - which he then refused.

Justices Peter Jacobson, Antony Siopis and John Nicholas today held that Justice Flick was correct in determining that Justice Stone's orders were interlocutory. They held there was no basis upon which his orders refusing leave to appeal could be set aside.

If they were wrong and the appeal was competent, they continued, they would have dismissed it.

After refusing to set aside Justice Flick's orders, the full court declared the appeal in each matter to be incompetent and ordered the former employee to pay the costs of and incidental to the full court hearing and an earlier directions hearing.

Federal Court cases not the beginning

The former Mitsubishi employee's long history of litigation began when he was still with company.

He brought numerous claims against it in the Workers Compensation Tribunal and the District Court of South Australia seeking compensation for alleged work-related injuries.

In October 1998, he signed an agreement with Mitsubishi in which he accepted a "final settlement" of $200,000, which included $10,000 for forgoing future claims.

A year after signing the agreement, however, he sought to have the consent orders set aside, and instituted more proceedings. One claim was for carpal tunnel syndrome that he said resulted from completing the paperwork involved with lodging so many actions.

In April 2005 Mitsubishi successfully sought an order restraining him from taking further action against it, after the South Australian Supreme Court found he had "persistently instituted vexatious proceedings", and that 30 of his 34 actions were launched "without reasonable ground". Those orders didn't apply in the Federal Court, where he has continued to litigate.

Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159 (8 December 2011)