PARTY SEEKS PERMISSION TO INSTITUTE AN APPEAL AGAINST A JUDGMENT BY THE MAGISTRATE ON THAT GROUND OF FAILURE OF THE LATTER TO CONSIDER THE AFFIDAVITS SUBMITTED BY HIM
ATTORNEY-GENERAL (SA) v KOWALSKI (No 8) [2020] SASC 208 (28 October 2020)
This case involves Mr.Kowalski seeking the court’s permission to institute an appeal against a judgment dismissing his application to set aside a consent judgment on the ground that the court failed to have regard to the affidavits submitted by him.
Facts:
Mr Kowalski seeks permission, pursuant to section 39 of the Supreme Court Act 1935 (SA) to institute an appeal against a judgment of a Magistrate dismissing his application to set aside a consent judgment in favour of Stanley & Partners.
Mr Kowalski suffered a severe mental breakdown and was unable to continue work at Mitsubishi. In due course, he was referred to a psychiatrist, Dr Karl Jagermann, for treatment. He did not ever return to work. In March 1994 Mitsubishi informed him that his employment was terminated because his contract of employment had been frustrated as a result of his psychiatric illness.
Mr Kowalski contends that the Magistrate erred by failing to have regard to the 1 May affidavit filed in support of his set aside application on 1 May 2019 in which he reproduced Dr Jagermann’s opinion expressed on 26 January 1993, being three days before Mr Kowalski consented to judgment, that he was not mentally capable of entering into an agreement and himself deposed that on 29 January 1993 that he was not mentally competent to consent to judgment because he was not able to think rationally or in a fit or competent mental state. Mr Kowalski also contends that the Magistrate erred by failing to have regard to the 11 April affidavit.
Issue: Should the court grant the appeal against the judgment of the Magistrate?
Law:
- Subsection 39(1) of the Supreme Court Act 1935 empowers the Court to make an order prohibiting a person by whom vexatious proceedings have persistently been instituted from instituting a further proceeding without permission of the Court.
Analysis:
The Magistrate did not at the outset, or at any other time during the hearing, identify or invite the parties to identify the affidavits upon which they relied. The Magistrate proceeded directly to submissions and commenced by identifying the issues. The Magistrate did not ultimately invite Mr Bourne to make submissions.
It is reasonably arguable that the course adopted by the Magistrate resulted in the hearing miscarrying from the perspective of both parties. From the perspective of Mr Kowalski, the Magistrate did not have regard to the 1 May affidavit filed in support of his set aside application. From the perspective of Mr Bourne, any question as to whether Dr Jagermann’s report should have been tendered was not prompted by the manner in which the Magistrate dealt with, or did not deal with, the affidavits.
Conclusion: The court grants the permission pursuant to section 39 of the Supreme Court Act to Mr Kowalski to institute an appeal against the decision of the Magistrate. The permission is limited to a single ground of appeal, namely that the Magistrate erred in failing to have regard to the 1 May affidavit or the exhibits to the 11 April affidavit.
