FEDERAL COURT OF AUSTRALIA

Kowalski v Repatriation Commission [2010] FCA 217

THE COURT ORDERS THAT:

1.                  I order that the motion be dismissed.

2.                  I order the applicant on the motion to pay the costs of the respondent to the motion, such costs to be taxed if not agreed. 

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.

THE COURT ORDERS THAT:

1.         I order that the motion be dismissed.

2.         I order the applicant on the motion to pay the costs of the respondent to the motion, such costs to be taxed if not agreed. 

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                                             In relation to the Notices of Motion filed by the appellant that I recuse myself from the respective appeals, the statements of principle referred to in paragraph 2.2 of the appellant’s submissions correctly set out the circumstances in which a judge should recuse himself or herself. 

2                                             The matters set out in paras 1, 1.1, 1.3 and 2.1 of the appellant’s submissions, are matters on which Mr Kowalski may indeed have based an appeal. 

3                                             However, the assertion that a judge has committed error in making any particular finding or in making a judgment does not of itself indicate bias.  The fact that a judge has not accepted a submission that a party has made, or has found against that party, does not, without more, establish bias in the sense discussed in Dranichnikov v Centrelink [2003] FCAFC 133, Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, and or Livesey v New South Wales Bar Association 1983) 151 CLR 288.

4                                             In respect of the complaints that have been made, they are essentially appeal points and the appellant has the right to pursue any rights of appeal so as to vindicate those assertions, in the face of the findings by me in the various matters to which the appellant has referred.  The fact that I may have been found to be in error by an appeal court does not mean that I have been biased in reaching the findings that I have made. 

5                                             In particular, may I say in relation to the Commissioner of Taxation v Day [2008] HCA 53, the High Court upheld my judgment in Day and rejected the view of one of my brother judges in that case concerning the deductibility of the legal expenses. 

6                                             For these reasons, each motion that I recuse myself from further involvement in each appeal is dismissed. 

7                                             In the circumstances, there is no reason demonstrated by the circumstances of this case or the submissions by Mr Kowalski why the ordinary rule as to costs in the exercise of the jurisdiction of Federal Court of Australia should not be made. 

8                                             In respect of each motion, I order that the motion be dismissed and order the applicant on the motion to pay the costs of the respondent to the motion, such costs to be taxed if not agreed. 

Associate:

Dated:         12 March 2010