FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2010] FCAFC 19

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an appeal from orders made by a judge of the Court (Besanko J) on 30 July 2009.  His Honour dismissed an appeal from an order made by a Deputy President of the Administrative Appeals Tribunal (“the Tribunal”) on 9 October 2008 affirming a decision of the Veterans’ Review Board rejecting a claim brought by Mr Kowalski for a disability pension:  Re Kowalski and Repatriation Commission (2008) 107 ALD 447. 

2                          The issue before the Deputy President was whether the medical conditions from which Mr Kowalski was suffering, namely, depressive disorder, anxiety disorder, hypertension and ischaemic heart disease, were “defence-caused” within the meaning of
s 70(5)(a) of the Veterans’ Entitlements Act 1986 (Cth). 

3                          Mr Kowalski contended that his conditions were defence-caused because they arose out of, or were attributable to, his period of defence service as a member of the Australian Army between April 1972 and October 1973. 

4                          The Deputy President determined that issue adversely to Mr Kowalski, who then appealed to the Court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  His notice of appeal purported to raise 44 questions of law and 44 grounds of error in the reasons for decision of the Deputy President.

5                          The primary judge dealt comprehensively with each of the 44 grounds, rejecting most of them upon the basis that they failed to raise a question of law, and rejecting the others because they disclosed no error on the part of the Deputy President.

6                          Mr Kowalski’s notice of appeal stated 71 grounds against the orders made by the primary judge.  We do not need to refer to the grounds individually in our reasons (although we have taken all of them into account) because they fall into two discrete categories which we will address.  Nor do we need to set out in our reasons the factual background which is recorded in some detail in the reasons of the Deputy President at [7]ff and reproduced by the primary judge at [4].

7                          Mr Kowalski’s first, and principal ground of complaint about the primary judge’s reasons was that he “perverted the course of justice” in reaching a result that was adverse to Mr Kowalski.  The effect of the ground was that Mr Kowalski had brought all of the necessary evidence to support his claim before the Deputy President, who ought therefore to have accepted it and that the Deputy President perverted the course of justice by rejecting the claim; also, the primary judge perverted the course of justice because he rejected Mr Kowalski’s appeal. 

8                          Although expressed in strong language, the substance of this ground of attack was that both the Deputy President and the primary judge were bound to accept Mr Kowalski’s claim.  In seeking to make good this proposition, Mr Kowalski took us in his oral submissions to some of the evidence contained in the appeal books.  He also gave, as an example, the fact that the Deputy President preferred the medical evidence called by the Repatriation Commission to the evidence of Mr Kowalski’s expert.

9                          It is quite clear that the Deputy President was not bound to accept Mr Kowalski’s claim.  The function of the Tribunal is to conduct a review of the decision of the decision-maker and to determine whether the decision was the correct or preferable one on the material before the Tribunal:  Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.  That was precisely what the Deputy President did.  As he said at [36], Mr Kowalski articulated his claim on a large number of alternative or cumulative bases, some of which seemed to be misconceived, and, mindful of the fact that Mr Kowalski was unrepresented, the Deputy President endeavoured to elicit information that may be relevant to the claims.

10                        To say that the Tribunal was bound to accept Mr Kowalski’s claims is to misconstrue its duties and functions.  As Gummow and Hayne JJ said in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], in an inquisitorial process, it is for the applicant to advance his or her evidence in support of the claim and it is for the Tribunal to decide whether the claim is made out:  see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40].

11                        Nor was the primary judge bound to accept Mr Kowalski’s claims.  The appeal from the Tribunal was on a question of law under the Administrative Appeals Tribunal Act 1975 (Cth).  It was for Mr Kowalski to establish that the questions arose and to demonstrate error.  The primary judge was satisfied in his comprehensive consideration of the 44 questions of law which were said to arise, that the appeal failed.

12                        The second aspect of Mr Kowalski’s complaints about the decision of the primary judge was that he was biased.  This claim had two separate limbs.  The first was that the primary judge proceeded to hear the appeal before awaiting the outcome of an application for leave to appeal brought by Mr Kowalski against the refusal of the primary judge to accede to Mr Kowalski’s application that the primary judge disqualify himself.

13                        This complaint has no foundation.  The primary judge was not bound to await the outcome of the application for leave to appeal.  The failure of a judge to disqualify himself or herself may be brought as a ground of appeal from the final orders of that judge.  It is not ordinarily to be the subject of a separate application for leave to appeal and the primary judge need not await the fate of any such application.

14                        The second aspect of Mr Kowalski’s complaint of bias was that the primary judge ought to have disqualified himself for the reasons stated in Mr Kowalski’s affidavit of
8 December 2008.

15                        We doubt whether that complaint was the subject of Mr Kowalski’s notice of appeal.  He referred us to two paragraphs, namely 4.1 and 4.70 which, in our view, did not raise it as a ground of appeal.  Nevertheless, we will address it.

16                        The primary judge dealt with Mr Kowalski’s application for the primary judge to disqualify himself in reasons for judgment delivered on 22 December 2008:  see Kowalski v Repatriation Commission [2008] FCA 1970.  No error is disclosed in those reasons.  Indeed, they show that the application was misconceived.

17                        In oral argument, Mr Kowalski sought to make good the claim of bias in yet another way.  He argued that the Deputy President was biased because he did not permit Mr Kowalski to ask certain questions of witnesses who gave evidence before the Tribunal.  That complaint was also the basis for an assertion of denial of procedural fairness.

18                        Mr Kowalski took us to a large number of transcript references to support his argument.  However, rather than supporting his claim, the numerous passages of the transcript to which we were referred merely made good the finding of the primary judge at [80].  As his Honour said, an applicant is not entitled to ask whatever question he or she thinks appropriate; the Deputy President had the power to disallow irrelevant, or otherwise objectionable, questions and:

“… the Deputy President did no more than exercise appropriate control in respect of the conduct of the application for review.”

19                        Mr Kowalski went so far in his argument of bias as to contend that the Deputy President was not permitted to reject any item of evidence tendered by him and that counsel for the Commission was not permitted to object to the tender.  This again demonstrates the proposition that Mr Kowalski’s ground of bias (or perversion of the course of justice, which seems to be to the same effect) is misconceived.

20                        So too is his similar contention that the primary judge “fabricated” his findings because the primary judge disagreed with Mr Kowalski’s submissions.

21                        The appeal must be dismissed with costs.

Associate:

Dated:         5 March 2010