FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2008] FCA 1970

KAZIMIR KOWALSKI v REPATRIATION COMMISSION

SAD 168 of 2008

BESANKO J

22 DECEMBER 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The applicant’s application by notice of motion dated 8 December 2008 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                                             This is an application by the applicant in a proceeding that I disqualify myself from further sitting in the proceeding. The proceeding is an appeal by the applicant against a decision of the Administrative Appeals Tribunal. The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is restricted to an appeal on a question of law.

2                                             On 11 November 2008, I made orders designed to progress the appeal to a point at which it was ready for hearing. The orders I made included the following orders.

6.         The applicant is to file written submissions and a list of authorities 14 business days prior to the hearing.

7.         The respondent is to file and serve written submissions and a list of authorities 3 business days prior to the hearing.

3                                             The appeal is listed for hearing on 22 January 2009.

4                                             The applicant advances a case of actual and apprehended bias. The grounds which he advances in support of his application are as follows:

1.         The order I made on 11 November 2008 requiring him to file and serve written submissions before the respondent files and serves its written submissions is evidence of bias. He referred to Bienstein v Bienstein (2003) 195 ALR 225.

2.         I have assisted a wrongdoer in an action in this Court (Kowalski v Mitsubishi Motors Australia Limited SAD 171 of 2008) and I awarded costs against the applicant in that proceeding in circumstances where an order for costs was not sought by the respondent. The applicant asserts that these matters are evidence of bias. The other proceeding has not yet proceeded to trial. I refused an application by the applicant that I disqualify myself from further sitting in that proceeding: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873.

5                                             I did not award costs in the other proceeding in circumstances in which the respondent did not ask for costs. On 4 December 2008, the respondent in that proceeding sought an order for costs on the applicant’s unsuccessful notice of motion but said that I may decide not to order costs in relation to that day (that is, 4 December 2008) “given that the matter is listed for directions on other matters as well”. I considered that observation to be an appropriate one and my costs order was in the following terms:

            The applicant is to pay the respondent’s costs of the hearing on 24 November 2008 and the outline of submissions dated 24 November 2008.

6                                             I have considered the grounds of the applicant’s application but, at this stage, I do not think that there is any basis upon which I should disqualify myself from further participation in this appeal.

7                                             The grounds upon which the applicant asked me to disqualify myself in the other proceeding are set out in my reasons in that proceeding: Kowalski v Mitsubishi Motors Australia Limited [2008] FCA 1873. It is not clear whether the applicant repeats those grounds on the present application. Even if he does, they provide no basis for an order in this proceeding that I disqualify myself from sitting.

8                                             I dismiss the applicant’s notice of motion.

Associate:

Dated:         22 December 2008