FEDERAL COURT OF AUSTRALIA

Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 265

THE COURT ORDERS THAT:

1.                  No orders be made.

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 application by the applicant to this appeal for me to recuse myself on the ground of findings which I have made when sitting as a Deputy President of the Administrative Appeals Tribunal, in the Administrative Appeals Tribunal (AAT), and in particular in a decision to which I was a party in Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 38.  In that case, the applicant’s credit was in issue.  He claimed that as a result of various events he suffered stresses which led to physical and later mental illnesses.  In that case, the AAT, of which I was a member, had to make an assessment of his claims. 

2                     In reasons published on 21 January 2009, we said of the applicant that he was a most difficult party; he made insulting remarks of the judges and the State system; he was antagonistic, argumentative and often quite unreasonable; he constantly interrupted the AAT and counsel for the respondent; he would not accept or take direction, nor would he take advice; he insulted counsel and the solicitors for the respondent; he made a number of groundless claims of unprofessional conduct on their part; he insulted two medical witnesses; he was rude to them and about them; he reported both doctors to the Medical Board; he telephoned one of the medical practitioner’s wives and wished her a miserable Christmas.

3                     He made it clear that unless he had his own way or obtained the result to which he claimed to be entitled, then it was because the AAT must be biased or simply wrong.  We said of him that we would only be prepared to accept his evidence where it was corroborated by the evidence of another witness who we found to be reliable and credible, or corroborated by documents which are themselves reliable but where his evidence appears to be self-evidently reliable.

4                     I do not in any way resile from what I said in those reasons in relation to the applicant’s conduct in that proceeding in the AAT. 

5                     However, the question now is whether or not I should sit on this application in circumstances where I have made strong findings relating to his conduct in that proceeding and his credibility generally.  The test is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the proceeding: Johnson v Johnson (2000) 201 CLR 488 at 492.  In my opinion, having regard to the strength of the findings which I have made, there might be an apprehension that I might not be able to put out of my mind the previous findings which I have made about the applicant and, as a result, that that would affect any judgment at which I might arrive.  In those circumstances, I intend to recuse myself.

6                     After I gave these reasons the applicant applied for costs.  I indicated that I had recused myself and in those circumstances could not make any order for costs.

7                     The applicant wrote to the District Registrar of this Court:

I inform you and I put on record that today Justice Lander made an oral decision to disqualify himself from any further involvement in action No. SAD 203/2009, however, Justice Lander refused to provide me with a copy of his decision, in writing, and he refused to make an order for costs and disbursement against the respondent, although, Justice Lander was fully aware that costs followed the event.

In view of the above, I formally apply to Justice Lander to provide me with a copy of his decision, in writing, and Justice Lander’s reason, in writing, why he refused to make an order for costs and disbursement against the respondent.

I trust that Justice Lander shall not refuse to comply with my not unreasonable request, because if Justice Lander refuses to comply with my request then I shall have no option but to appeal his decisions to the Full Court of the Federal Court.

I inform you and I put on record that in par 183 of Justice James’s decision in R v Einfeld [2009] NSWSC 119 (20 March 2009) Justice James has correctly stated that “As has often been said, each of the offences ... perverting the course of justice strikes at the heart of the administration of justice.  These offences are often referred to as offences against public justice.  In sentencing for these offences there is a special need to give effect to the purposes of sentencing of general deterrence and denunciation, as well as the other purposes stated in s 3A of the Crimes (Sentencing Procedure) Act.  ... a lawyer who commits such an offence is to be sentenced on the basis that he would have been fully aware of the gravity of his conduct ...”.

I reserve the right to provide a copy of this letter to the Full Court of the Federal Court and to the High Court at the appropriate time.

I look forward to your reply in the next few days.  (Original emphasis.)

8                     Ordinarily I would ignore a communication of that kind which includes a thinly veiled threat.  However, I wish to avoid putting the respondent to the cost of an appeal and so I will give reasons why no order for the applicant’s costs could or should be made.

9                     First, the applicant asked me to recuse myself which I have done.  Once that step is taken I should not make any further orders in the proceeding.  That is why I could not make an order for costs even if such an order should have been made.  The applicant was not prepared to accept that explanation.

10                  There are two reasons why no order should be made.

11                  No order has been made.  More particularly, no order has been made and no event has occurred which would justify making an order for costs against the respondent.

12                  My recusing myself at the behest of one litigant does not entitle that litigant to an order for costs against the other litigant.  The respondent adopted the attitude that whether I should recuse myself was a matter for me.  That was an appropriate stance.

13                  Lastly, the applicant is not entitled to costs because as an unrepresented party he has not incurred any costs.  The purpose of an order for costs is to compensate a successful party: Latoudis v Casey (1990) 170 CLR 534 at 543.  No compensation is necessary where no costs have been incurred.  Moreover, the applicant has not incurred any expenses by reason of the application.  He is not entitled to be compensated for any expenses outside the litigation.

14                  In Cachia v Hanes (1993) 179 CLR 403, Mason CJ, Brennan, Deane, Dawson and McHugh JJ said at 410-411:

To use the Rules to compensate a litigant in person for time lost would cut across their clear intent.  Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner’s employee.  Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

This is hardly surprising.  It has not been doubted since 1278, when the Statute of Gloucester 1278 (U.K.) 6 Edw. I c. 1 introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation.  They were never intended to be comprehensive compensation for any loss suffered by a litigant.  As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travel and losse of time” Coke, Second part of the Institutes of the Laws of England (1797), p. 288.  See also Howes v. Barber (1852), 18 W.B. 588, at p. 592 [118 E.R. 222, at p. 224]; Dowdell v. Australian Royal Mail Steam Navigation Co. (1854), 3 El. & Bl. 902, at p. 906 [118 E.R. 1379, at p. 1381].

15                  The applicant is not entitled to costs.  Nor is he entitled to expenses.

16                  I hope these further reasons may dissuade the applicant from lodging an appeal which would only waste the Court’s and the respondent’s time, and put the respondent to unnecessary expense.

Associate:

Dated:         23 March 2010