FEDERAL COURT OF AUSTRALIA Kowalski v Trustee of Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCA 14 KAZIMIR KOWALSKI V TRUSTEE: MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 AND MITSUBISHI MOTORS AUSTRALIA LTD ACN 007 870 395 No S 234 OF 2002 SPENDER J BRISBANE 15 JANUARY 2003 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY S 234 OF 2002 BETWEEN: KAZIMIR KOWALSKI APPLICANT AND: TRUSTEE: MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 FIRST RESPONDENT MITSUBISHI MOTORS AUSTRALIA LTD ACN 007 870 395 SECOND RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 15 JANUARY 2003 WHERE MADE: BRISBANE THE COURT DIRECTS THAT: 1. The Registrar not accept the notice of motion dated 14 January 2003 or the supporting affidavit, or further process the motion. 2. The original notice of motion and supporting affidavit be returned to Mr Kowalski. 3. A copy of these documents be retained in the Registry. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY S 234 OF 2002 BETWEEN: KAZIMIR KOWALSKI APPLICANT AND: TRUSTEE: MITSUBISHI MOTORS AUSTRALIA LIMITED STAFF SUPERANNUATION PTY LTD ACN 064 829 616 FIRST RESPONDENT MITSUBISHI MOTORS AUSTRALIA LTD ACN 007 870 395 SECOND RESPONDENT JUDGE: SPENDER J DATE: 15 JANUARY 2003 PLACE: BRISBANE REASONS FOR DIRECTION 1 An appeal has been lodged by Kazimir Kowalski against the judgment of Mansfield J of 17 September 2002. The parties to the appeal are Mr Kowalski and the Trustee of the Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd (ACN 064 829 616) ("the Trustee") and Mitsubishi Motors Australia Ltd (ACN 007 870 395) ("Mitsubishi"). 2 At first instance, the claim against the Trustee was dismissed, the primary judge being of the view that the Court had no jurisdiction to hear the claims against the Trustee, because the Trustee was not an employer under the Workplace Relations Act 1996 (Cth). In relation to the claim against Mitsubishi, that claim was dismissed on the basis of estoppel arising out of a final judgment given by the Australian Industrial Relations Commission ("the AIRC"), and also on the basis that Mr Kowalski had no prospect of success against Mitsubishi. 3 Mr Kowalski presented a notice of motion on 14 January 2003, which seeks, among others: "1. An order that the first and the second respondent make discovery of the documents referred to in the affidavit of Kazimir Kowalski sworn on 14 January 2003. 2. An order that the first and second respondents pay to the appellant his costs and disbursements of and incidental to this notice of motion on an indemnity basis." 4 The affidavit of Mr Kowalski in support of that motion refers to a letter dated 8 January 2003 which he sent to the first and second respondents. That letter requested discovery of a copy of various documents. The affidavit asserts that the first and second respondents have failed to make discovery of the requested documents, with the consequence that: "… I seek an order that the first and the second respondent make discovery of the documents mentioned herein before my appeal to the Full Federal Court has been heard on 12 February 2002." 5 In my opinion, it cannot be suggested that the documents sought fall into any category of fresh evidence and further, the documents sought to be discovered by the letter of 8 January 2003 do not constitute part of the evidence that was before the primary judge. No basis appears from the material filed by Mr Kowalski either to support the reception of those documents on the basis of fresh evidence or on any other basis. 6 The notice of motion marked "RECEIVED/FILED 14 January 2003" by the South Australian District Registry is truly an abuse of process. Pursuant to O 46 r 7A, I direct the Registrar not to accept the notice of motion or supporting affidavit or further process the motion. I direct that the original of those documents be returned to Mr Kowalski, a copy of which should be kept in the Registry. 7 I note that Mr Kowalski might seek to agitate the issues raised by his motion and supporting affidavit when the appeal is heard at 10.15 am Wednesday 12 February 2003. Mr Kowalski should be supplied with a copy of these reasons. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Direction herein of the Honourable Justice Spender. Associate: Dated: 17 January 2003 Date of Hearing: 15 January 2003 (on the papers) Date of Judgment: 15 January 2003