FEDERAL COURT OF AUSTRALIA

Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1420

Federal Court of Australia Act 1976 (Cth) ss 31A, 43

Federal Court Rules O 52 r 2AA

Health and Other Services (Compensation) Act 1995 (Cth) ss 18, 23A, 23B, 23D

Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988) cited

Bienstein v Bienstein (2003) 195 ALR 225 cited

Kowalski v Chief Executive Officer of Medicare [2009] AATA 427 affirmed

Kowalski v Chief Executive Officer of Medicare [2009] FCA 1072 affirmed

Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 followed

Kowalski v Repatriation Commission (2009) 259 ALR 444 followed

Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 cited

Luck v University of Southern Queensland (2009) 176 FCR 268 referred to

Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 cited

KAZIMIR KOWALSKI v CHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA

SAD 165 of 2009

BENNETT J

2 DECEMBER 2009

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed.

2.         The applicant to pay the respondent’s costs of this application on an indemnity basis.

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicant, Mr Kowalski, commenced proceedings in the Administrative Appeals Tribunal in respect of a number of letters received from Medicare Australia.  Of particular concern to him was a statement in those letters that characterised payments received by Mr Kowalski pursuant to heads of agreement between himself and Mitsubishi Motors Australia (Mitsubishi) as “compensation”.  Mr Kowalski asserted that various of those letters constituted a decision by the Chief Executive Officer of Medicare Australia (Medicare CEO) that is reviewable by the Tribunal under the Health and Other Services (Compensation) Act 1995 (Cth) (the HOSC Act) and sought review of that decision by the Tribunal.

2                          Section 23D of the HOSC Act confers jurisdiction on the Tribunal to review a decision by the Medicare CEO that a statement under ss 18 or 23A, or an amended statement under s 23B, is not substantially correct.  The Tribunal found that none of the correspondence from Mr Kowalski to Medicare constituted a statement under s 18 (Kowalski v Chief Executive Officer of Medicare [2009] AATA 427 at [7]).  It found at [8] that it had no evidence before it that Medicare ever received a statement from Mr Kowalski under ss 18 or 23A, or an amended statement under s 23B, or that the Medicare CEO had made a decision of the kind referred to in s 23D(1).  The Tribunal did not consider that there had been any reviewable decision by Medicare and dismissed Mr Kowalski’s application.

3                          Mr Kowalski instituted an appeal to the Federal Court from the decision of the Tribunal.  The primary judge dismissed the appeal pursuant to a motion brought by the Medicare CEO for summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the ground that Mr Kowalski had no reasonable prospects of success (Kowalski v Chief Executive Officer of Medicare [2009] FCA 1072).

4                          The primary judge (at [13]) was of the view that the Tribunal’s conclusion was correct.  His Honour found that the Tribunal correctly concluded that the letters did not amount to statements of past benefits for the purposes of s 18(1) of the HOSC Act nor did they constitute or evidence a decision under s 23B of that Act.  His Honour found that the Tribunal correctly concluded that the “decision” identified by Mr Kowalski by reference to the correspondence did not amount to or evidence a reviewable decision, that is, a decision reviewable by the Tribunal in accordance with the powers in ss 18, 23A and 23B of the HOSC Act.  His Honour rejected the assertions that the Tribunal failed to provide adequate reasons and held that the Tribunal did not err in law in deciding that it did not have jurisdiction to entertain Mr Kowalski’s application.  His Honour dismissed the application and awarded indemnity costs.

5                          There was a further matter.  As his Honour noted at [1], the purpose of these proceedings, in a practical sense, was not apparent.  Medicare had informed Mr Kowalski in writing that it did not intend to take any further action against him under the HOSC Act to recover any monies paid by Mitsubishi and had pointed out to him that the proceedings appeared to be entirely unnecessary.  As his Honour said at [19], ‘[t]hat is self-evident’.

Application for leave to appeal

6                          Mr Kowalski made an oral application to the primary judge for leave to appeal both the judgment and the costs order after his Honour made orders and delivered reasons in this matter.  His Honour ordered that the notice be treated as an application for leave to appeal for the purposes of the Federal Court Rules and that the proceedings be referred to another judge of the Court.  An order under s 31A is interlocutory (Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42]-[43] per Spender, Graham and Gilmour JJ (Kowalski FCAFC)approving Luck v University of Southern Queensland (2009) 176 FCR 268 at [101] per Rares J with whom Graham J agreed at [58]).  Accordingly, Mr Kowalski needs leave to appeal the decision of the primary judge under s 24(1A) of the FCA Act. 

7                          Order 52 rule 2AA of the Federal Court Rules provides that an application mentioned in s 25(2) of the FCA Act (which includes an application for leave to appeal) must be heard and determined by a single judge unless a judge directs that the application be heard and determined by a Full Court, or unless another condition which is not presently relevant is satisfied.  I see no reason to direct that the present application be heard and determined by a Full Court. 

8                          Mr Kowalski attempted to file a notice of appeal in the Court which was out of time for an application for leave to appeal.  Medicare does not take issue with the delay, which was apparently due to Mr Kowalski’s belief that he had the right to file a notice of appeal and that no leave was required.

9                          Mr Kowalski must establish that the impugned decision is attended with sufficient doubt to warrant it being reconsidered by the Court and that substantial injustice would result if leave were refused supposing the decision to be wrong (Kowalski FCAFC at [44]).

10                        From the written and oral submissions, the relevant issues raised can be summarised as:

·          whether the Tribunal had jurisdiction;

·          whether Mr Kowalski had been denied procedural fairness;

·          whether there was bias or apprehended bias on the part of the primary judge;

·          whether there was utility in the proceedings;

·          the purpose for which Mr Kowalski wishes to maintain the proceedings.

Whether the Tribunal had jurisdiction

11                        The primary judge set out at [11] why he was of the view that the Tribunal correctly concluded that the letters on which Mr Kowalski relied do not amount to statements of past benefits for the purposes of s 18(1) of the HOSC Act.  His Honour pointed out that the correspondence from Medicare in its letters of 11 and 25 March 2009 made it plain that it had not made a reviewable decision in terms of ss 18, 23A or 23B in respect of those letters.  Apart from broad assertions, nothing has been put by Mr Kowalski to explain why his Honour’s conclusions were wrong.

12                        Mr Kowalski apparently lodged a fresh application to the Tribunal on 2 October 2009, that is, after the primary judge’s decision.  Mr Kowalski refers to a ‘NOTICE OF OPPOSING APPLICATION FOR EXTENSION OF TIME FOR LODGING APPLICATION FOR REVIEW OF DECISION’ dated 26 October 2009 filed by Medicare in these new Tribunal proceedings (the notice of opposition).  It appears that Mr Kowalski asserts that, at [19] of the primary judge’s reasons, his Honour found that a letter written by Medicare to Mr Kowalski dated 30 July 2009 constituted a decision under s 23B(1) of the HOSC Act.  That letter had been written after the Tribunal decision that the primary judge was reviewing.  In observing that this letter was not relevant to the matter before him, his Honour said:

Whilst that letter of 30 July 2009 might indicate that, now, Medicare has made a decision by giving notice under s 23B(1) of the HOSC Act that Medicare considers that the applicant’s statement to Medicare under s 23A is not substantially correct (because it asserted that no compensation had been paid pursuant to the Heads of Agreement), that was not the state of affairs at the time of the Tribunal’s decision.

13                        In the notice of opposition, under the heading “Grounds for opposition to application”, the following is stated:

The application fails to specify, in sufficient detail, the decision the applicant is requesting an extension of time within which to lodge an appeal of.  The applicant refers to a letter dated 30 July 2000.  The only decision that could be said to be contained within the letter of 30 July 2009 is: ‘The Respondent considers that the moneys paid to you by Mitsubishi Motors Australia Limited (Mitsubishi) are ‘compensation’ for the purposes of section 4 of the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act)’ (Decision).

Should this be the relevant decision to which the Applicant is referring, the respondent opposes the application on the following grounds…

14                        The notice then proceeds to describe what it says about the strength of the applicant’s case, referring frequently to “the Decision”.  Medicare asserts in the notice of opposition that the Tribunal has no jurisdiction, as the Decision is not reviewable, not being a decision made under any of ss 18, 23A or 23B of the HOSC Act.  Mr Kowalski’s new application to the Tribunal is not in evidence before me but the notice of opposition states that Mr Kowalski contends in his application that [19] of the primary judge’s decision in this case constitutes a decision that grants the Tribunal jurisdiction to review the Decision.  Medicare asserts in the notice of opposition that there is nothing in [19] of his Honour’s decision that provides the Tribunal with jurisdiction to review the Decision.

15                        Later in the notice of opposition, Medicare states that:

The Decision had been communicated to the applicant prior to the letter of 30 July 2009, including in a letter from the respondent to the applicant dated 4 August 2008…

As noted above, the Decision had been communicated to the applicant previously including in letters from the respondent to the applicant dated 4 August 2008 and 30 July 2009.

16                        Mr Kowalski seizes upon the notice of opposition and the references to “the Decision” as some sort of an admission on the part of Medicare that the letter of 30 July 2009 does constitute a reviewable decision resulting in jurisdiction in the Tribunal.  He then interprets the statements in the notice of opposition that the Decision had been communicated to him in the letter of 4 August 2008 as admissions by Medicare that the Decision had already been made as early as 4 August 2008, which was before the Tribunal decision of 2 June 2009.  However, a consideration of the whole of the notice of opposition makes it perfectly clear that it neither asserts nor admits that the letter of 30 July 2009 constitutes a decision reviewable by the Tribunal; to the contrary.  Nor does it form any basis for a reviewable decision in the letter of 4 August 2009.  In any event, despite Mr Kowalski’s reliance upon his Honour’s comment with respect to the 30 July 2009 letter, it is not relevant to the application before me because, as his Honour observed, that letter was written after the decision of the Tribunal the subject of the proceedings before him and the subject of this application for leave to appeal.

17                        Mr Kowalski has not demonstrated that the primary judge’s decision in concluding that the Tribunal was not in error in finding that it lacked jurisdiction, was wrong.

The allegation of denial of procedural fairness and denial of natural justice

18                        Mr Kowalski says that the primary judge failed to allow him to make oral submissions before dismissing his appeal against the Tribunal decision.  Mr Kowalski states that he did not have an opportunity to make oral submissions, contrary to Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106.  He says that as a litigant in person, he should have been treated differently.  Medicare contends that, at the directions hearing of 4 August 2009, both parties agreed to the primary judge hearing the appeal ‘on the papers’ and that Mr Kowalski raised no objection to the absence of an oral hearing.  Medicare says that Mr Kowalski only took exception to the course adopted by his Honour after judgment was handed down on 23 September 2009.

19                        The transcript of the relevant directions hearing before the primary judge is in evidence.  During the hearing, the following exchange took place:

His Honour: ….All right.  Now, how do you want your appeal to proceed?

Mr Kowalski:  Well, I want it to proceed on papers

His Honour:  Okay, that’s fine.  What I’ll do then is the following:…

The primary judge then made directions, including for the filing of further affidavit evidence and written submissions by Mr Kowalski, taking into account Mr Kowalski’s request for the time he required. His Honour then said:

All right. 

4.         Direct notice of motion to be heard and determined on the papers.

5.         Liberty to apply.

So after 19 August I will consider all the material that’s before me and I’ll give you a ruling

Mr Kowalski responded: Thank you, your Honour.

20                        Both Mr Kowalski and Medicare have referred to a number of decisions in which Mr Kowalski was a party and appeared for himself.  It is apparent that, while Mr Kowalski is not legally represented and was not legally represented before the primary judge, he is not unfamiliar with court proceedings.  To the extent that the question whether the parties would be content to have the primary judge deal with the matter ‘on the papers’, his Honour was entitled to assume that Mr Kowalski understood what that meant.  Mr Kowalski does not say that he questioned what that expression meant at the relevant time and, indeed, he used it himself.  It is apparent to me after hearing Mr Kowalski present his application for leave to appeal that he is not reticent in making statements or asking questions if he feels the need to do so.  In circumstances where the matter was raised clearly at the directions hearing, and that his Honour did not, on that occasion, fix the matter for an oral hearing, the course of conduct being addressed should have been apparent to Mr Kowalski.

21                        I see no denial of procedural fairness or of natural justice in the primary judge proceeding to do what he told the parties he would do, that is, to decide the matter on the papers.  It is clear from his Honour’s reasons that he gave full consideration to the subject matter before him.  There is no basis for Mr Kowalski’s claim that he was denied natural justice or procedural fairness by the primary judge.

Alleged bias or reasonable apprehension of bias

22                        Mr Kowalski has not presented any proper basis for asserting the primary judge did not bring an unprejudiced mind to the appeal (Bienstein v Bienstein (2003) 195 ALR 225 at [35] - [36]).  Mr Kowalski’s dissatisfaction with his Honour’s reasons is not sufficient to establish bias or reasonable apprehension of bias on the part of the primary judge (Bienstein at [32]).  As pointed out by Medicare, Mr Kowalski did not ask his Honour to disqualify himself before judgment was given.  Mr Kowalski has not established any basis for such an allegation.  None is apparent.

Is there utility in the proceedings?  What is Mr Kowalski’s purpose in maintaining the proceedings?

23                        Mr Kowalski clarified why, despite the fact that Medicare has stated clearly that it will take no steps to recover any money he received from Mitsubishi, thus depriving the proceedings of any apparent utility, he wishes to maintain the proceedings.  He says that he wishes to have determined at law whether or not monies received by him from Mitsubishi were compensation under the HOSC Act.  He says that it is relevant to other proceedings presently before the Courts that he is bringing against the Military Compensation Commission and against Mitsubishi.  He says that in both of these proceedings, the nature of the payments made by Mitsubishi is in issue.  He also says that he believes that his failure to challenge Medicare will prejudice his claim against the Military Compensation Commission.

24                        There is no utility in the present proceeding.  In effect, this case has no subject matter.  An attempt by Mr Kowalski to maintain these proceedings in order to influence in some unspecified way other proceedings is an abuse of process and forms no basis for allowing this application for leave to appeal.

25                        Other matters have been raised in Mr Kowalski’s notice of appeal, with which I will deal, although they were not pressed in oral argument.

Alleged failure on the part of the Tribunal to provide reasons

26                        This ground seems to be based upon the fact that the Tribunal provided written reasons after the appeal was instituted in the Federal Court.  The Tribunal did provide reasons for its decision and those reasons were considered by the primary judge.  There is no suggestion in his Honour’s reasons that the Tribunal’s reasons were inadequate.  There is no evidence before me to suggest that they were.

Alleged failure correctly to apply the law regarding uncontradicted affidavit evidence

27                        Mr Kowalski asserts that the primary judge misapplied the law in Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988) and Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546.  These cases are, Mr Kowalski submits, authorities for the proposition that, where statements made in affidavits are not replied to or contradicted by other evidence and the deponents of the affidavits are not cross-examined, those statements will be accepted by the Court. 

28                        This ground seems to be based on [19] of the primary judge’s reasons.  I do not accept Mr Kowalski’s characterisation of those reasons.  On a fair reading, they do not suggest that his Honour rejected or failed to consider a statement contained in Medicare’s letter of 4 August 2008, relied upon by Mr Kowalski in an affidavit of 7 August 2009, as he alleges.  In [10] and [11], the primary judge clearly considered Medicare’s letter of 4 August 2008 and found that it did not constitute or evidence a decision under ss 18, 23A or 23B of the HOSC Act.  As I read [19], his Honour did not find that a letter of 30 July 2009 from Medicare indicated that a decision was made under s 23B of the HOSC Act.  Accordingly there was no such finding that would have contradicted earlier express findings regarding Medicare’s letter of 4 August 2008.

Proposed additional evidence concerning the nature of the payment to Mr Kowalski

29                        Mr Kowalski has sought to tender a letter dated 22 December 2008, from the solicitors for Mitsubishi to Medicare. He relies on the statement in that letter that the settlement amount paid by Mitsubishi to Mr Kowalski ‘did not represent, in whole or in part, a redemption of entitlement to compensation by periodic payments’ and that Mitsubishi did not regard the settlement proceeds as compensation.  Medicare objects to the tender on the ground of relevance.  That letter is not relevant to this application. First, it was not in evidence before the Tribunal or the primary judge.  Secondly, the characterisation by Mitsubishi of the payment from Mitsubishi to Mr Kowalski is not relevant to the issue in these proceedings of whether Medicare had made a reviewable decision and does not affect the fact that Medicare is not seeking any moneys from Mr Kowalski arising from that payment from Mitsubishi.

Conclusion

30                        The primary judge’s decision is not attended by any doubt, let alone any sufficient doubt, to warrant reconsideration by a Full Court.  A grant of leave to appeal would be futile.  Further, Mr Kowalski will not suffer any substantial injustice if leave to appeal were refused.  Even if a reviewable decision had been made by Medicare in correspondence with Mr Kowalski, Medicare is not seeking any monies from him so that no such decision would have been or will be implemented.  Medicare has stated quite clearly that it does not intend to take any action against Mr Kowalski under the HOSC Act to recover any monies paid to him by Mitsubshi whether or not those monies were in the nature of compensation.

31                        Mr Kowalski made and attempted to make numerous allegations against the primary judge and against the solicitor for Medicare.  They are without foundation and I will not consider them further.

32                        Accordingly, the application for leave to appeal should be dismissed.

Costs

33                        Mr Kowalski submits that the Court has no jurisdiction to award costs in this matter because the jurisdiction of the Court is enlivened by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  That submission was made and answered in Kowalski v Repatriation Commission (2009) 259 ALR 444 at [24]–[28] per Spender, Graham and Gilmour JJ.  The Full Court pointed out that there is no question of the Court’s power to award costs and that the submission is answered by s 43(1) of the Federal Court of Australia Act which provides: 

Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

No other Act has been identified which provides that costs should not be awarded in these proceedings.

34                        The primary judge awarded costs against Mr Kowalski on an indemnity basis.  I see no basis for any suggestion that his Honour’s discretion in that regard miscarried.

35                        Medicare seeks costs of this application on an indemnity basis.  Medicare submits that it was capricious for Mr Kowalski to institute these proceedings in circumstances where he should have known that there was no reasonable prospect of success and where Medicare was not seeking to recover anything from him or seeking in any way to implement what he described as a reviewable decision.

36                        Mr Kowalski was clearly on notice from the decision of the primary judge that his Honour was of the view that the proceedings had no utility.  He had been warned by Medicare, when pointing out to him the futility of the proceedings commenced before the primary judge, that it would seek indemnity costs from his Honour.  Mr Kowalski has persisted in this application for leave to appeal.  There is no basis for his grounds of appeal.  Medicare should be compensated for its costs of defending this application.  Although the Court is generally more reluctant to order indemnity costs against self-represented litigants, I consider that it is appropriate to order costs against Mr Kowalski on an indemnity basis in these circumstances.

Associate:

Dated:         2 December 2009