Case: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154
Outcome: cited
reasons of Bleby J for making those orders are set out in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. With that background, I turn to the allegations in the amended statement of claim. I bear in mind that the applicant appeared before me in person and it appears that he prepared the amended application and the amended statement of claim. The first substantive allegation made by the applicant in the amended statement of claim is that under clause 3.4 of the Heads of Agreement, the respondent was required "to prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission". It is alleged that the respondent "deliberately and consciously" failed (and the failure continues) to prepare and execute a notice of settlement under s 23 of the Health and Other Services (Compensation) Act 1995 (Cth) ("Health and Other Services Act") and a "South Australian Workers Compensation Tribunal Form 5 Standard Minutes of Order". As to the latter document, the applicant claims, as I understand it, that the respondent was required by the Workers Compensation Tribunal Rules 1996 to lodge such a document. The amended statement of claim then contains quotes from the reasons for judgment of Bleby J (previously referred to) and a letter from Medicare Australia to the applicant dated 4 August 2008. The quote from the letter dated 4 August 2008 omits certain small passages and I include those passages in the quote set out below: (1) The reasons of Bleby J: "The plaintiff claims that it did not accept, at the time of the mediation, that it had any outstanding liability to the defendant in relation to work-related injuries except as follows: 1. $3,000.00 damages payable in respect of the eye injury; $289.60 for non-economic loss resulting from a 2% loss of function of the right middle finger; 3. $122.00 for medical expenses (Mr Wicks); 4. $33.00 for medical expenses (Dr Hughes); 5. $657 WCT costs order 20 December 1996 ; and 6. $613 WCAT allocatur for costs 1 August 1997. ... Importantly, the plaintiff denied it had any liability pursuant to the Compensation Act to pay the defendant weekly income maintenance and thus never sought to redeem any such liability via the mediated settlement or indeed at all. ... The mediation occurred on 26 October 1998 and was presided over by an experienced and well-respected Queen's Counsel. Ms Layton QC and Mr R B&ouml;nig represented Mitsubishi at the mediation." (2) The letter from Medicare Australia to the applicant dated 4 August 2008: "At the request of Senator Annette Hurley, Senator for South Australia, Medicare Australia has investigated your claims related to monies you received from Mitsubishi Motors Australia Limited in November 1998. Based on the information I have available to me, I can now confirm that the monies you received in November 1998, relating to an ill health benefit and an ex-gratia payment for permanent disability, are compensation for the purposes of the Health and Other Services (Compensation) Act 1995 . Further, I can confirm that Mitsubishi Motors has provided Medicare Australia with the required information relating to this claim. I will now investigate what further action needs to be taken to recover any monies owed to the Commonwealth relating to your payment." It is then alleged by the applicant that, in a way which is not specified, it should be concluded from the previous pleas that the respondent has contravened ss 51AC and 52 of the Trade Practices Act , s 58 of the Fair Trading Act and ss 4 , 6 and 8 of the Misrepresentation Act and has acted in bad faith, fraudulently, in breach of trust and has been guilty of misrepresentation and undue influence. The applicant then alleges that the respondent has committed a criminal offence under the Health and Other Services Act. The thrust of the applicant's allegations under this head seems to be that the Heads of Agreement provided for the payments to be made by the respondent with a denial of liability and, in clause 2.2, for an ex gratia payment as compensation for permanent disability impairing the applicant's future earning capacity. As Bleby J's reasons make clear, the respondent's position was that it was not liable to pay compensation to the applicant under the Workers Rehabilitation and Compensation Act 1986 (SA) ("Workers Compensation Act") other than some relatively small amounts with respect to an eye injury and a loss of function to the right middle finger. The respondent's position as to the nature of the payments it was making under the Heads of Agreement was to be contrasted with the conclusion reached by Medicare Australia that the payments under the Heads of Agreement were compensation under the Health and Other Services Act. Leaving aside questions of whether the respondent engaged in conduct in "trade or commerce", of whether, for the purposes of s 51AC of the Trade Practices Act , the conduct was engaged in in connection with the supply or acquisition of goods or services, of whether it is an essential element of any claim by the applicant that an order be made setting aside the Heads of Agreement including an order that the applicant repay the moneys paid thereunder, and of whether the relief claimed is the proper relief and can be granted by this Court, nothing has been put by the applicant in all the material he has put before the Court to suggest the circumstances I have identified could arguably give rise to a characterisation of conduct of the respondent as unconscionable within s 51AC of the Trade Practices Act or misleading or deceptive or likely to mislead or deceive within s 52(1). The respondent had a belief concerning its liability under the Workers Compensation Act. Even if the decision of Medicare Australia that payments made under the Heads of Agreement were compensation for the purposes of the Health and Other Services Act means that the respondent's belief was wrong a proposition which is by no means clear that does not of itself establish that the respondent's conduct was unconscionable or misleading or deceptive or likely to mislead or deceive. The appropriate relief The amended statement of claim does not identify an arguable cause of action which is within the jurisdiction of this Court. As pleaded, the references to s 51AC and s 52(1) of the Trade Practices Act represent no more than a colourable attempt to engage federal jurisdiction. The difficulty in giving judgment on any of the claims under s 31A of the Federal Court of Australia Act 1976 (Cth) is in discerning precisely what claims are being made. It is very difficult to discern where one "claim" ends and another begins.