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Seppo  Renfors  (Trading As Renown Furniture) (Appellant) v Glen Bosman (Respondent) [1997] SAIRC 50 (29 October 1997)

SENIOR JUDGE W. D. JENNINGS ADELAIDE

Cases Cited:

Palmer and Another v. Durnford Ford and Another [1992] 2 All E.R.122.

Hunter v. Chief Constable of the West Midlands Police and Others [1982] A.C. 529.

Tringali v. Stewardson Stubbs and Collett Ltd. (1966) 66 S.R. (N.S.W.) 335.

Appearances:

The Appellant in person.

Ms. M. Kaukas (of counsel) for the Respondent.

This appeal was filed by the alleged employer (`the employer') against the decision by the learned Industrial Magistrate to change, at the request of the employer, an earlier consent Order. The learned Industrial Magistrate altered the earlier Order substantially in the terms requested by the employer, save in that he added to the Order a further direction that the employer be also liable, jointly and severally, as being the person in effective control of the corporation upon whom the liability was fixed. In addition he made a further Order relating to the manner in which the judgment debt be paid.

By Application for Directions dated 15 May 1997 the respondent to this appeal (`the employee') sought an Order that the appeal be struck out. This decision deals with that Application for Directions.

The employer was unrepresented both before the Court at first instance and before me. During the course of the proceedings before him, the learned Industrial Magistrate advised the employer that he should give serious consideration to obtaining professional advice. This advice apparently was not followed. Had he been properly advised, then this matter would have been disposed off much more efficiently because much irrelevant material and argument would not have been produced, and the Court's attention would have been focussed on the essential issues without the inclusion of arguments that were based upon material from other jurisdictions which were of no relevance to these proceedings. The matter would have not developed into what towards the end became something of an all-out paper war with both sides filing extensive documentation.

The responsibility for this turn of events I lay at the feet of the employer. Ms. Kaukas, of counsel for the employee, was forced to deal with a flood of paper, much of which contained material, whether it be argument, fact or opinion, that had little relevance to the essential matter before this Court. One could be drawn to the conclusion that the employer was attempting to win the day by throwing up any and all arguments that he could think of, irrespective of their merit, so that the employee, and ultimately this Court, would reach a conclusion favourable to the employer by virtue of the sheer volume of the material. The diligent attempts by the learned Industrial Magistrate, Ms. Kaukas, and ultimately, this Court as presently constituted, to advise the employer as to what was required of him, fell upon deaf ears.

It is well recognised that the Industrial Relations Court of South Australia has frequently before it parties who are unrepresented. The practice has developed of the Court, and on occasions members of the legal profession, giving to those unrepresented parties assistance and advice in the conduct of the proceedings, such that matters are disposed of expeditiously and fairly, consistent with the over-riding obligation that this Court has, to decide matters on the basis of `equity good conscience and the substantial merits of the case'. In this case, not only did the employer apparently ignore the assistance and advice, but he seemed to treat it as a licence to escalate the extreme content of his arguments to the point where Ms. Kaukas quite properly took advice as to some of the allegations which challenged her professional competence and probity.

Let me say at this point, based on my observations of the conduct of this matter, that Ms. Kaukas' conduct has been consistent with the high professional and personal standards expected of a member of the legal profession.

The Application to Strike Out was based upon four separate grounds:

1. The appeal is an abuse of process because it has been brought for an improper purpose.

2. The appeal is an abuse of process because it has been conducted in a vexatious, improper and scandalous way.

3. The appeal is an abuse of process having been brought for the purpose of harassment, to cause delay and to discourage recovery by the applicant.

4. The grounds of appeal are unrelated to the reasons appealed against.

It is important to note that much of the material relied upon by Ms. Kaukas was contained in documents formally before the Court whether by way of exhibit affidavit or otherwise, and thus formed part of the record of proceedings. It seems to me that they are thereby less easy to excuse, not only because of their formality but also their consistency of theme, indicating a sense of deliberation in their author.

I do not intend to traverse the detail of Ms. Kaukas' lengthy submission in support of her Application to Strike Out, but rather to highlight some of the matters that support the findings I make in relation to the four grounds set out above.

Firstly, the appeal is brought against a Consent Order, all aspects of which the employer agreed to. Common sense would seem to indicate that the employer was starting from a difficult position. This has been defined as an abuse of process (see Palmer and Another v. Durnford Ford and Another [1992] 2 All E.R. 122). Significantly, the employer expressly agreed that he was in effective control of Steven Bowles Investments Pty. Ltd., therefore the decision of the learned Industrial Magistrate simply records the reality. It is open and proper to reach the conclusion that the employer wishes to avoid the personal liability imposed by the amended Order of 8 April 1997. Given that that liability will only arise if the other party (Steven Bowles Investments Pty. Ltd.) does not pay, it seems reasonable and open on the material before me to conclude that this exercise has been initiated to avoid paying the judgment debt, the subject of the Consent Order. This likewise is an abuse of process.

Secondly, what purport to be grounds of appeal bear little if any relationship to the Orders sought on the appeal.

Thirdly, the appeal documents were the fore-runner of a deluge of documentation that is verbose, and much of it totally irrelevant, despite the attempts of the Court to assist the employer. This leads me to the conclusion that the employer had deliberately embarked upon a course of action for reasons of personal advantage without regard as to whether it would assist this Court or allow the employee an opportunity of meeting whatever case the employer hoped to make out.

Fourthly, I refer specifically to the affidavit of Ms. Kaukas dated 29 July 1997 and its annexures. It is too extensive to set out in full, and more particularly because I do not wish to repeat the nature of its subject matter complained of by Ms. Kaukas in a public document; but I adopt its contents as evidencing the vexatious and scandalous remarks made by the employer. Significantly most are written and the affidavit is therefore citing from documents on the record of proceedings. The evidence of that affidavit alone, and my findings in relation to Ms. Kaukas' conduct, would have been sufficient to strike out the appeal.

Having considered Ms. Kaukas' arguments on these grounds, and considered the authorities cited by her in support thereof, I find that she has made out a case on each of the four grounds that there has been a substantial abuse of process.

I therefore grant the Application to Strike Out.

Given that the employer has, pursuant to Section 188 of the Industrial and Employees Relations Act 1994, a right of appeal to the Full Court, I am constrained, given my findings in this matter, to consider what should be the appropriate Order that will constrain or impede the employer from continuing the behaviours referred to herein before a Full Bench of this Court.

It is apparent from the foregoing that I have formed a very definite view about the employer's conduct in these proceedings, and his motives for pursuing them before this Court. In the absence of some positive step by the employer to demonstrate his bona fides I would regard his continued pursuit of this matter by an appeal to the Full Court of this Court as a further abuse of process.

It is beyond argument that this Court possesses the inherent power: `to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people': Hunter v. Chief Constable of the West Midlands Police and Others [1982] A.C. 529 at 536 per Lord Diplock.

Having formed the view that I have, I think that I have a duty to put in place certain measures to ensure that the processes of this Court are not abused for the purpose of injustice: Tringali v. Stewardson Stubbs and Collett Ltd. (1966) 66 S.R. (N.S.W.) 335 at 344 and 345.

It seems to me that an appropriate measure is to stay any appeal proceedings which may be filed in the Full Court by the employer unless and until the employer lodges with the Registrar an amount reflecting the judgment sum together with an amount as security for the employee's costs, which I fix for this purpose as being $2,000. I therefore order accordingly, with the intimation that if such amount is not paid within fourteen (14) days of this date, I would be favourably disposed to entertaining an application for the proceedings to be permanently stayed.

Without an Order of the type I have proposed I would expect the employer to appeal almost as a matter of course which would inconvenience the employee and his advisers, as well as imposing a significant cost burden on them both in terms of time and money.

A further source of authority for the action I have taken lies in Section 154 where the Court is charged to be:

`... governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts ...'.

In this matter the employee has been deprived of the benefits of an Order of this Court by virtue of the employer mounting a challenge to a Consent Order, such challenge being found to be, by these reasons, an abuse of process on a number of counts. I believe that for the Court not to offer the employee some measure of protection for what the Court has decreed is his entitlement, would be to fail in the duty so imposed.

In the event that the judgment sum and $2,000 is not lodged with the Registrar within fourteen (14) days from the date hereof, I order that the full judgment debt, together with costs to be agreed or to be taxed, be due and payable immediately.